2000 school referendum is finally resolved

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“Because there is a qualifying mark in a qualifying place on the ballot, the vote should be counted, so as to give effect to the will of the voter.” Justice N. Patrick Crooks Wisconsin Supreme Court

A slash mark next to the “no” box on a ballot was a qualifying mark that had to be counted, even though it was light and appeared to have been erased, the Wisconsin Supreme Court held on Feb 4.

On Nov. 7, 2000, a referendum was held in the LaFarge School District to determine whether a project for school improvements should proceed. The ballots were counted, and the result was a tie. Pursuant to sec. 5.01(4)(d), a tie on a referendum results in its defeat.

Patricia H. Roth, a voter, requested a recount of the ballots. During the recount, the Board of Canvassers disqualified three “yes” votes and three “no” votes, again resulting in a tie. Of the three “no” votes, one was disqualified because the Board determined that the mark had been erased. The board found that it could therefore, not discern the voter’s intent and the ballot should not be counted under sec. 7.50(2)(c).

Gail Muller, another voter, also questioned the Board. Roth challenged the referendum in circuit court, and Muller sought to intervene. Vernon County Circuit Judge Michael Rosborough determined that Muller should not be allowed to intervene.

The court of appeals reversed in a published decision, Roth v. LaFarge Sch. Dist. Bd. of Canvassers, 2001 WI App 221, 247 Wis.2d 708, 634 N.W.2d 882 (Roth I), and remanded the case to circuit court, for a determination of whether the Board’s conclusion — that voter intent could not be ascertained from the ballot — was supported by substantial evidence.

On remand, Judge Michael McAlpine was assigned to the case, and held that the Board did not misinterpret sec. 7.50(2)(c). McAlpine held that determining voter intent is a finding of fact, and there was substantial evidence to support the Board’s decision.

Muller appealed again, and the court of appeals again reversed in a published decision, Roth v. LaFarge Sch. Dist. Bd. of Canvassers, 2002 WI App 309, 259 Wis.2d 349, 655 N.W.2d 471 (Roth II).

The court of appeals concluded that the circuit court and the Board erroneously interpreted and applied sec. 7.50(2)(c). Finding the statute ambiguous, the court relied on the legislative preference that ballots be saved from invalidity, and concluded that, since there was a mark in the space designated for a “no” vote, the “no” vote should be counted, resulting in a tie, and defeat of the referendum.

The Supreme Court granted review, and affirmed in a decision by Judge N. Patrick Crooks. Justice Ann Walsh Bradley wrote separately, concurring in the result only.

Voter Intent

“I believe that the Board’s finding of an erasure should have been reviewed as a question of fact and not law.” Justice Ann Walsh Bradley in concurrence

The court concluded that the Board erred when it disqualified the disputed “no” vote, citing cases dating back to the 19th century in which courts held votes valid, despite errors by election officials or the voter.

The court stated, “we think Wisconsin’s position on recognizing voter intent is clear. It is evident that this court has consistently placed a premium on giving effect to the will of the voter.”

The court concluded that, applying sec. 7.50(2)(c) correctly, the intent of the voter becomes readily ascertainable. The statute provides that a vote will be counted if a cross, slash, or other mark similar to the eight examples listed in the statute is present in a qualifying place on the ballot.

In this case, the c
ourt found, “at the very least, there is a slash through the box to the right of the word ‘no.’” Pursuant to sec. 7.50(2)(c), the mark was made in a qualifying place on the ballot, as it was placed in the box to the right of the word ‘no.’ Because there is a qualifying mark in a qualifying place on the ballot, the vote should be counted, so as to give effect to the will of the voter.”

The court distinguished the case of Schmidt v. West Bend Bd. of Canvassers, 18 Wis.2d 316, 118 N.W.2d 154 (1962). In Schmidt, the ballot in question contained a cross in the square opposite a mayoral candidate, which was rendered barely visible by a heavy shading that filled the square entirely. The squares for the three other offices on the ballot, in contrast, were marked with a simple “X.” The court held that it was reasonable to conclude that the shading, which obliterated the entire square, reflected the voter’s effort to cancel his or her vote for the mayoral candidate.

Distinguishing Schmidt, the court reasoned, “In Schmidt, there was an attempt to achieve a complete obliteration of the vote. Moreover, the ballot in Schmidt contained other marks that indicated an intent to vote for candidates running for other offices. In this case, there is a mark that fits within the category of those enumerated by Wis. Stat. sec. 7.50(2)(c). In contrast to Schmidt, there is no indication that the voter in this case attempted to remove his or her vote from consideration. Moreover, the voter in this case was required to vote for only one issue. Thus, there is no further example of the voter’s marks for other candidates or issues, rendering a comparison between the mark in question and other marks made by the voter impossible in this situation.”

Accordingly, the court affirmed the court of appeals decision that the “no” vote should have been counting, resulting in a tie, and thus, a defeat of the referendum.

The Concurrence

Justice Bradley wrote separately, applying a different analysis, and even characterizing the mark in the box differently.

Instead of just a backward slash (\), Bradley noted that there was also a colorless forward slash (/), forming a completed (X), concluding that this colorless forward slash was sufficient for the Board to find that the mark constituted an erasure.

Bradley concluded that, pursuant to DeBroux v. Bd. of Canvassers for the City of Appleton, 206 Wis.2d 321, 331, 557 N.W.2d 423 (Ct.App.1996), the Board is the trier of fact, and the court cannot substitute its judgment for the Board’s finding that the mark was erased.

Bradley reasoned, “The fact that the backward slash portion of the ‘X’ is very light and the forward slash indentation is partially missing provides substantial evidence to support the factual finding of an erasure. Accordingly, I would defer to the Board’s factual finding.”

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Bradley then turned to the next step — whether the erasure was sufficient to nullify the vote, pursuant to sec. 7.50(2)(cm). That statute provides: “Any apparent erasure of a mark next to the name of a candidate may not be counted as a vote for that candida
te if the elector makes another mark next to the name of one or more different candidates for the same office and counting of the mark would result in an excess number of votes cast for the office.”

Bradley concluded that the vote should be counted, even deferring to the finding of the Board that the mark was erased, because there were no other marks on the ballot, and counting the mark would not result in an excess number of votes cast.

Bradley concluded, “I believe that the Board’s finding of an erasure should have been reviewed as a question of fact and not law. I would defer to that finding because an examination of the ballot reveals that it is supported by substantial evidence. However, because the conditions precedent to the statute governing erasures are not present, and Wisconsin’s general principle of inclusion controls, I would count the vote.”

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David Ziemer can be reached by email.