Sewell v. Racine Unified Sch. Dist. Bd. of Canvassers, 2020AP1271-AC

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtPATIENCE DRAKE ROGGENSACK, J.
Citation401 Wis.2d 58,972 N.W.2d 155,2022 WI 18
Parties James SEWELL and George Meyers, Petitioners-Appellants-Petitioners, Dennis Montey, Petitioner-Appellant, v. RACINE UNIFIED SCHOOL DISTRICT BOARD OF CANVASSERS, YES for Our Children, A Referendum Committee, Chelsea Powell and The Racine Unified School District, Respondents-Respondents.
Docket Number2020AP1271-AC
Decision Date12 April 2022

401 Wis.2d 58
972 N.W.2d 155
2022 WI 18

James SEWELL and George Meyers, Petitioners-Appellants-Petitioners,

Dennis Montey, Petitioner-Appellant,
v.
RACINE UNIFIED SCHOOL DISTRICT BOARD OF CANVASSERS, YES for Our Children, A Referendum Committee, Chelsea Powell and The Racine Unified School District, Respondents-Respondents.

No. 2020AP1271-AC

Supreme Court of Wisconsin.

Oral Argument: November 22, 2021
Opinion Filed: April 12, 2022


For the petitioners-appellants-petitioners, there were briefs filed by M. Samir Siddique, Gary E. Grass, Vincent J. Bobot and Siddique Law, LLC, Milwaukee. There was an oral argument by M. Samir Siddique.

For the respondents-respondents YES for Our Children and Chelsea Powell, there was a brief filed by Christopher M. Meuler and Meuler Law, LLC, Wauwatosa and Rebecca K. Mason and Rebecca Mason Law, LLC, Racine. There was oral argument by Christopher M. Meuler.

For the respondents-respondents Racine Unified School District Board of Canvassers and the Racine Unified School District, a brief was filed by Matthew W. O'Neill and Fox, O'Neill & Shannon, S.C., Milwaukee. There was oral argument by Matthew W. O'Neill.

An amicus curiae brief was filed on behalf of Law Forward, Inc. by Jeffrey A. Mandell, Douglas M. Poland, Rachel E. Snyder and Stafford Rosenbaum LLP, Madison and Mel Barnes and Law Forward, Inc., Madison.

ROGGENSACK, J., delivered the majority opinion for a unanimous Court.

PATIENCE DRAKE ROGGENSACK, J.

972 N.W.2d 156
401 Wis.2d 60

¶1 We review the decision of the court of appeals,1 which summarily affirmed the decision of the circuit court2 affirming the results of the referendum recount conducted pursuant to Wis. Stat. § 9.01 (2019-2020).3 On our review, the petitioners, James Sewell and George Myers (hereinafter collectively referred to as "Sewell"), ask us to reverse the court of appeals and remand to the circuit court. They urge us to conclude that the Racine Unified School District Board of Canvassers ("Board of Canvassers") incorrectly calculated the recount's vote totals and that Sewell has an absolute

401 Wis.2d 61

right pursuant to Wis. Stat. § 7.54 to have the ballots opened and reviewed in open circuit court, which has not yet occurred.

¶2 In the matter before us, the circuit court acted as an appellate decision-maker on the correctness of the recount. Wis. Stat. § 9.01(8). Sewell then appealed the circuit court's decision affirming the Board of Canvassers’ recount, which the court of appeals reviewed and affirmed. We conclude that the circuit court competently and comprehensively reviewed each of Sewell's factual and legal challenges to the recount conducted by the Board of Canvassers. The circuit court noted the issue of Wis. Stat. § 7.54 as "Petitioner's Repeated Demand to Examine and Recount Ballots," but, it did not address § 7.54. The court of appeals summarily addressed § 7.54 contrary to Sewell's contention.4

¶3 Although we agree that Wis. Stat. § 7.54 appears to provide an occasion to utilize its provisions in regard to a contested election, we do not identify that here. Rather, we simply note that § 7.54 does not apply when an appeal of the result of a recount by the board of canvassers is before an appellate court. Accordingly, we affirm the decision of the court of appeals.

I. BACKGROUND

A. Factual Background5

¶4 On April 7, 2020, the voters within the

401 Wis.2d 62

Racine Unified School District ("School

972 N.W.2d 157

District") participated in a referendum to determine whether the School District would be permitted to exceed the revenue limits detailed in Wis. Stat. § 121.91. In total, the spending plan permitted the School District to exceed the revenue limits in excess of one billion dollars over the next thirty years.

¶5 The April 13, 2020 vote canvass reported that "Yes" votes exceeded "No" votes by five votes. The Board of Canvassers certified the election results as 16,748 "Yes" votes and 16,743 "No" votes. On April 15, 2020, Sewell petitioned for a recount of the referendum vote totals under Wis. Stat. § 9.01(1).

¶6 Between April 18th and 24th, in the midst of the COVID-19 pandemic, the Board of Canvassers conducted the recount. It consisted of reviewing 96 wards and more than 34,000 ballots. All of the ballots were reviewed and recounted by hand in open sessions of the Board of Canvassers. Accommodations, including the use of large projection screens and moveable carts to transport ballots so that closer inspections could be made of requested ballots, were provided to participants in the recount. When individual ward's recounts were contested and a prior decision regarding procedure used in an earlier ward's recount had been made and then changed in a later ward recount, the Board of Canvassers re-tallied the earlier ward's recount as requested by representatives observing the recount. As part of the recount procedure in some wards, the Board of Canvassers utilized "drawdowns."6

401 Wis.2d 63

At the end of the six-day hand recount, the ballot totals were 16,715 "Yes" votes and 16,710 "No" votes, a margin of victory of five votes.

B. Procedural History

¶7 On May 1, 2020, Sewell appealed the results of the Board of Canvassers’ recount to the Racine County Circuit Court "pursuant to Wis. Stats. §§ 9.01(6) and 9.01(7)." On May 14, 2020, the circuit court held a scheduling conference, wherein it ordered that on or before May 28, 2020, Sewell was to file a complaint "enumerating with specificity every alleged irregularity, defect, mistake or fraud" alleged in the recount as well as a supporting brief. Respondents were directed to file an answer and a supporting brief on or before June 8, 2020. Sewell was directed to file a "short reply brief responding to the briefs filed by respondents" on or before June 15, 2020. The parties complied with the court's orders. On May 19, 2020, the circuit court entered an order securing all election materials.

¶8 On June 26, 2020, Sewell filed a "Repeated Demand to Examine and Recount Ballots." In it, Sewell alleged a right to have the ballots opened in circuit court. Sewell contended that Wis. Stat. § 7.54 "creates an absolute right" to do so. This was the first time § 7.54 was raised in the appeal of the recount proceedings, which had commenced under the provisions of Wis. Stat. § 9.01 at Sewell's request.

¶9 The circuit court concluded that "the procedure utilized by the [Board of Canvassers] did not deny the right of anyone to view, request or challenge any action taken during the recount." The court further characterized Sewell's complaint as a "misunderstand[ing

401 Wis.2d 64

of] the basic nature of a recount" and ultimately concluded that

972 N.W.2d 158

"[a] review of the records, procedure and facts, herein, cause[d it] to find that the procedure utilized by the [Board of Canvassers] in this recount was proper and provided an accurate result." Accordingly, the circuit court affirmed the results of the recount. Sewell appealed that decision to the court of appeals.

¶10 In addressing Sewell's argument that Wis. Stat. § 7.54 gave him an absolute right to have the ballots opened in open court, the court of appeals was not persuaded that the statute aided his argument.7 It noted that, although the statute authorized the ballots to be opened in court, it did not require that a court do so. In Sewell's case in particular, the court of appeals reasoned that opening the ballots was unwarranted because "(1) the ballots had already been opened by the [Board of Canvassers] during its recount; and (2) the circuit court found that ‘the procedure utilized by the [Board of Canvassers] in this recount was proper and provided an accurate result.’ "8 Because Sewell did not demonstrate that the court's factual findings were not supported by substantial evidence, the court of appeals summarily affirmed the circuit court's decision.

¶11 We granted Sewell's petition for review. We are tasked with determining whether Wis. Stat. § 7.54 provides Sewell an avenue for requiring the circuit court to open the referendum ballots during his appeal of the recount.

401 Wis.2d 65

II. DISCUSSION

A. Standard of Review

¶12 In this case, the procedure for review of an appeal of a recount is set out by statute. Under Wis. Stat. § 9.01(8)(d), the circuit court shall set aside or modify the determination of the board of canvassers if "it finds that the board of canvassers ... has erroneously interpreted a provision of law and a correct interpretation compels a particular action." Moreover, if the determination "depends on any fact found by the board of canvassers ... the court may not substitute its judgment for that of the board of canvassers ... as to the weight of the evidence on any disputed finding of fact." § 9.01(8)(d). See also ...

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