Answering your Questions about the Election
Hello,
Following the election I have received a significant number of emails from people who wonder about what can be done regarding possible errors in the vote counting or possible fraud in the election process.
Who May Request a Recount
Many have contacted me asking me to request a recount. However, I cannot request a recount. Wisconsin law is very specific about that process. (s. 9.01, Stats.) Here is further comment from a nonpartisan Wisconsin Legislative Council attorney I contacted following our election:
Only a voter in a referendum election or an “aggrieved” candidate may request a recount. Section 9.01 (1)(a)5.b., Stats., defines an aggrieved candidate as a candidate who trails the leading candidate by no more than 1 percent of the total votes cast for that office. Under s. 901.01 (1)(a), Stats., a petition may not be filed until after canvassing is complete and, under that same statute: “With regard to an election for president, the petitioner shall file the petition not later than 5 p.m. on the first business day following the day on which the commission receives the last statement from a county board of canvassers for the election following canvassing of all valid provisional ballots.”
Because only Donald Trump is the “aggrieved candidate” in the presidential election, only he can request a recount for that part of the election. In addition, the vote margin must be one percent or less of the total votes cast for the office.
Paying for a Recount
If the vote margin is less than .25 percent of the total votes cast for office, there is no charge to the aggrieved candidate for the recount. However, if the difference is over that amount, the aggrieved candidate seeking a recount must pre-pay the anticipated costs of the recount. In that case, there is no fee. [s. 9.01 (1) (ag), Stats].
In 2016, the estimated cost for a recount in the presidential election was nearly $3.5 million.
What Safeguards are in Place on Election Day to Protect the Integrity of our Elections?
When votes are tabulated at either the municipal clerk’s office or a central counting location, the process is open to the public and observers from both political parties may be present. In its Election Day Manual, the Wisconsin Elections Commission sets forth how observers and poll inspectors operate to ensure voting integrity on Election Day. Beginning on page 108, the Manual describe how ballots are counted, how they may be challenged, and what happens in the event of a challenge. As we have discussed, representatives from both political parties may observe the counting of ballots. Wisconsin law allows an elections inspector or a voter to challenge, for cause, whether a voter is casting a legitimate ballot. The Legislature has imposed deadlines for making and resolving these challenges and determining which body is responsible for resolving challenges. [ss. 6.92 to 6.97, Stats.]
What Can Someone Do about Suspected Fraud?
With regard to suspected fraud, anyone may file a complaint with the Elections Commission and/or with the district attorney, depending on the allegation. The Elections Commission an informational website page with details on how to file a complaint, explanations of which complaints the Commission considers and which may be referred to the district attorney, and links to forms for filing a complaint.
I have also received many emails from people making general claims election fraud has taken place. For example, they mention evidence of widespread fraud or clear evidence of missing votes or possible computer glitches. Although general allegations are helpful in raising the awareness about potential problems, they do not provide the kind of information the Elections Commission needs to investigate. For that reason, people who suspect fraud should use the above link to contact the Commission with specific information.
What Happens Following Completion of The Counting?
With regard to the electors, the U.S. Constitution authorizes state legislatures to determine how electors are nominated in their own states. In Wisconsin, both the Republican party and the Democrat party nominate its own slate of electors and, at the general election, the voters cast votes to determine which slate is named by the Governor to cast its votes for president and vice president at the electoral college. [ss. 5.05 (4) and 15.61, Stats.] After the presidential election, the chairperson of the Commission certifies the post-election canvassing, which determines which party’s slate of electors is named by the Governor to cast its votes for president and vice president. For this presidential election, the last day for a county board of canvassers to submit its statement to the Commission is November 17, 2020. The Legislature has imposed additional deadlines to ensure that our state’s slate of electors is certified by December 8, 2020, and given due consideration by Congress.
Thus the legislature has chosen a procedure by which the electors are chosen. There has been some discussion in the national media about circumstances under which a legislature could choose to disregard the certification of election results by the Elections Commission and send, instead, a different slate of electors than the one the Elections Commission certifies as having received more votes….there would need to be a factual determination, either by the legislature or the courts, that the election is so rife with fraud or disruption that it is impossible to determine a winner in the state. The many mechanisms Wisconsin has set in place for ensuring the accuracy of counting ballots, and the opportunity for a recount in a close election, are designed to avoid such a scenario.
For Further Information
The Wisconsin Elections Commission has several publications on its website that explain its applications of laws relating to vote security and election integrity. The publication on election integrity and this paper on Frequently Asked Questions, particularly the section on Election Inspectors/Poll Workers, contain much helpful information.
Finally, I have included a Wisconsin Legislative Council memo in response to my questions about the election process, which you can read here.
Note: all items in italics above are comments from the nonpartisan Wisconsin Legislative Council.