2022 Spring Election Recounts

The 2022 spring election resulted in a number of elections decided by only a few votes.  Consequently, it is expected that many school districts will be asked to conduct a recount of ballots, which is the exclusive remedy to test in court the right of a candidate to hold office based on the number of votes cast at an election.  This Legal Update will review the election recount procedure in Wisconsin.

There is no automatic recount even when the unofficial results are close.  A candidate for an office whose total votes were within 1% of the winner’s vote total when at least 4,000 votes were cast or within 40 votes of the winner’s total if fewer than 4,000 votes were cast may request a recount of the election results.  Any individual who voted in a referendum election may request a recount of the referendum results.

Petition.  In order to request a recount, the candidate or referendum voter must file a sworn petition with the filing officer.  The recount petition must specifically request a recount, identify the individual’s eligibility to file the petition either as an aggrieved candidate or a referendum voter, the ward(s) to be recounted, and the basis for requesting a recount, which may include a general statement that there was a mistake or fraud or may be more specific, such as identifying a particular defect, irregularity, or illegality in the conduct of the election.  The petition must be verified and signed under oath.  For a school district election, the recount petition must be filed with the school district clerk.

Petition Deadlines.  The recount petition must be filed no earlier than the completion of the canvass and not later than 5:00 p.m. on the third business day following the last meeting day of the board of canvassers determining the election results.

Filing Fees.  Depending upon the number of votes cast for the office and the difference between the total votes cast for the “leading candidate” and the total votes cast for the petitioner, the petitioner may be required to pay a filing fee along with his/her recount petition.  With regard to a candidate election, if 4,000 or fewer votes were cast, no filing fee is required if the difference between the leading candidate and those cast for the petitioner is less than 10.  If more than 4,000 votes were cast, no filing fee is required if the difference between the leading candidate and those cast for the petitioner are 0.25% or less.  In an election in which more than one office of the same type is to be filled from the same territory, the total votes cast for the office is determined by dividing the total number of votes cast for the office by the number of offices to be filled.  Then, the difference between the total votes cast for the leading candidate and the petitioner is divided by the total votes cast for the office to calculate the percentage difference.

In a referendum election, if 4,000 or fewer votes were cast, no filing fee is required if the difference between affirmative and negative votes cast is less than 10.  If more than 4,000 votes were cast, no filing fee is required if the difference between affirmative and negative votes cast is 0.25% or less.

When a filing fee is required, the fee is equal to the actual cost of performing the recount in each ward for which the petition requests a recount, or in each municipality for which the petition requests a recount where no wards exist, plus the actual cost incurred by the Wisconsin Elections Commission to provide services for performing the recount.

Public Notice.  Upon receipt of a valid recount petition, the school district clerk must prepare and post a public notice of the recount pursuant to the Wisconsin Open Meetings Law.  The notice must describe when and where the recount will occur.  The clerk must send a copy of the notice to the Board of Canvassers and to all candidates whose names were listed on the ballot for the office in question.  The Wisconsin Elections Commission recommends, but does not require, that the clerk send a copy of the notice to all registered write in candidates.  Candidates must be personally served with the notice and sign to demonstrate receipt.  The clerk must also notify the Wisconsin Elections Commission of the recount.

Recount Timing.  The recount must begin no earlier than 9:00 a.m. on the day following delivery of notice to all candidates and no later than 9:00 a.m. on the day following the last day for filing a recount petition, i.e., the third business day following the last meeting day of the Board of Canvassers determining the election results.

Recount Proceedings.  The Board of Canvassers, who determined the original election results, must conduct the recount.  In the event that any of the original members are unavailable when the recount is scheduled to begin, the school district clerk must appoint another qualified individual(s).

Anyone may attend the recount, including, but not limited to: the candidates, their representatives or legal counsel, and media representatives.  The Board of Canvassers may choose to have legal counsel present to address any legal advice needed during the recount proceedings.  The Board of Canvassers may hire tabulators (who should be election inspectors) to assist in administering the recount.

The Board of Canvassers’ responsibility is to recount the votes cast for the office in question and to correct errors, if any.  The Board of Canvassers must give the petitioner and each candidate an opportunity to object and provide evidence on:

1. Objections to the recount itself
2. The composition of the Board of Canvassers
3. The procedures followed
4. Any ballot cast at the election, and
5. Any other issues presented.

The Board of Canvassers must make a complete written record of the recount proceedings.

On the Wisconsin Elections Commission website, the school district clerk and members of the Board of Canvassers can find a Recount Proceedings checklist of materials and supplies, a list of tasks to complete during the Recount Proceedings, and other guidance to consider.

Recount Results.  After the Recount Proceedings, the Board of Canvassers must file the results and minutes with the school district clerk.

Appeal.  The candidate or recount petitioner has the right to appeal the Board of Canvassers’ recount determination in the local circuit court within five (5) business days after the completion of the recount in all counties of concern.