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Ballots Case Analysis

By: dmc-admin//February 11, 2004//

Ballots Case Analysis

By: dmc-admin//February 11, 2004//

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It is ironic that, as Wisconsin prepares to vote in the 2004 presidential primary, its Supreme Court is finally settling an election, involving fewer than 800 total votes, that was held on the same day as the disputed Bush-Gore election resolved long ago.

The irony is apparently lost on the court, though, for, by rejecting the framework set forth in Bradley’s concurrence, the majority opinion makes it more likely that elections will be challenged in court in the future, and that those challenges will be more lengthy and complex.

The majority opinion treats the entire issue as one of law — “whether Wis. Stat. sec. 7.50(2)(c) was correctly applied in this case.”

The majority adds, “The Board of Canvasser’s determination was, in this case, a determination as a matter of law, since it involved the interpretation and application of a statute. More specifically, we must determine whether the Board of Canvassers committed a legal error with respect to its interpretation and application of Wis. Stat. sec. 7.50(2)(c).”

The court stated in a footnote that it declined to use DeBroux v. Bd. of Canvassers for City of Appleton, 206 Wis.2d 321, 557 N.W.2d 423 (Ct.App.1996), because it focuses on a board’s findings of fact.

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In doing so, the court effectively writes sec. 9.01(8) out of the statutes. In relevant part, that section states that courts reviewing election disputes “shall separately treat disputed issues of procedure, interpretations of law and findings of fact.”

Under the majority interpretation, almost everything becomes a question of law, subject to de novo review, rather than a question of fact, subject to deference.

The case demonstrates the problem with this approach, in that the two opinions both provide copies of the disputed ballot as exhibits, and the two don’t even look alike. In the majority’s exhibit, only the forward slash is visible. In Bradley’s exhibit, the forward slash is visible, and half of the backward slash is, as well.

The court’s decision to permit courts to determine, as a matter of law, what the voter’s intent was, rather than whether the board used proper legal rules to determine the voter’s intent, is a recipe for protracted litigation in matters that should be resolved expeditiously.

– David Ziemer

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David Ziemer can be reached by email.

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