Questions about the authenticity of ballots arose during the 2011 Supreme Court recount process due to holes in some ballot bags, gaps in their closure or issues with security tags. A hole in a ballot bag or a missing security tag is not enough evidence alone to discard the ballots inside. The ability to put a hand into a ballot bag is not by itself evidence of fraud.
Wisconsin’s system of counting ballots on Election Night, canvassing votes in the following days, and recounting those votes is designed to ensure an accurate, honest and transparent tabulation and reporting of the people’s will at the ballot box, as well as to detect actual fraud.
Election Day Procedures
When most Wisconsin citizens vote on Election Day, they place their marked ballots into an optical scanning device, which records the votes and drops the marked ballots into a locked container.
Before ballots are cast, the optical scan voting device is secured with a tamper evident numbered seal. The seal number is recorded on the Inspectors’ Statement by the poll workers. Voting occurs in a public location that anyone other than a candidate may observe while the polls are open. Any member of the public, including a candidate, may be present at the polling place after the polls close.
After the polls close, election workers print out a tape which lists the tabulated vote totals. The poll workers remove the voted ballots and place them into a secured container or bag. The bag is secured using a tamper evident numbered seal. Ballot containers have all potential openings secured in such a manner that no ballot may be removed, nor any ballot added, without visible interference or damage to that ballot container. The seal number is recorded on the Inspectors’ Statement and Ballot Container Certificate by the poll workers. Election officials are required to maintain a chain of custody record that documents the movement and location of election ballots from the time of delivery of the ballots to the municipal clerk or board of election commissioners until the destruction of the ballots is authorized under § 7.23 Wis. Stats.
Even if the container or bag is somehow opened later, or if the chain of custody is broken, election officials have the original print-out tape from the machine, as well as the electronic memory device from the machine. This enables election officials to determine the election night vote count.
Recount Procedures
The recount is conducted by the County Boards of Canvassers using procedures specified by state law and the Wisconsin Elections Commission. During a recount, the people in charge of recounting the ballots are not the people who handled and counted the ballots on Election Night. If the ballots had been tampered with between the election and the recount, there would be a break in the chain of custody and an unexplained difference in the results. Typically in a recount, there are minor differences due to ballot marking errors by voters or issues encountered with the optical scanners. In this election, 90 percent of the ballots were cast on paper and counted by optical scanners, 5 percent were cast on paper and counted by hand, and 5 percent were cast and tabulated on touch-screen equipment. In this recount, of the 90 percent that were originally counted by voting equipment on Election Night, more than half are being recounted by hand, which results in some ballots being counted that the voting equipment may not have attributed a vote due to ballot irregularity, such as the voter circling the candidate name instead of filling in the oval or arrow.
WEC staff has created an internal review process to check each ward’s recount totals against the original canvass totals to look for variances of plus or minus 10 votes. Any ward in which 10 more or 10 fewer votes are reported is flagged by staff for follow-up with the county clerk for an explanation of the reason. So far, we have found no significant, unexplained variances of vote totals. Staff will continue to review Waukesha County’s results as they come in each day until the recount is complete.
Certification of the Election
Under state law, the WEC is required to rely on the certifications of the county Boards of Canvassers in making its certification of the final results. If either of the campaigns has unresolved issues with how individual county Boards of Canvassers handled the recounting of certain ballots, their exclusive remedy under state law is through an appeal to the circuit court.
In its certification of election results, the Commission Chairperson certifies that the attached tabular statement, as compiled from the certified returns made to the WEC by the several counties of the State, contains a correct abstract of the total number of votes given for the election. It also determines and certifies the names of candidates who have received the greatest number of votes, and are duly elected. A certificate of election may not be issued by the WEC's Administrator until the deadline for any appeal has passed.