In the matter of; WAUKESHA COUNTY BOARD OF CANVASS A recount of the Spring Election For Office of Supreme Court Justice Recount 11-2 Held on April S, 2012 Pursuant to the April 25, 2011 order of the Wisconsin Government Accountability Board (GAB) and the Declaratory Judgment of Hon. Richard Niess in Dane County Case #11-CV-1863, the Waukesha County Board of Canvass conducted a recount for the Office of the Wisconsin Justice of the Supreme Court for the election held on April 5, 2011, The Board concludes that the intent of the voters in Waukesha County for the aforesaid ‘Supreme Court election is reflected in the attached Tabular Statement, Summary Statement of the Board of Canvassers, and Certification. The recount was conducted in accordance with the election statutes and the regulations of the GAB for each of the reporting units in Waukesha County. A verbatim record was made of the following: election materials brought into the counting room by the County Clerk's designee; election materials returned to the County Clerk’s designee; documentation or lack of documentation for duplicate or remade ballots; all objections and concerns by candidates’ representatives; decisions by the Board of Canvass; consultations with the GAB; and identification of exhibits HAND COUNTED PAPER BALLOTS The tabulators compared and reconciled the poll lists from the municipalities with the poll lists from the county for each polling unit, More often than not this took a significant amount of time because of clerical and human error in handing out voter numbers on election day. Poll workers in many municipalities failed to periodically reconcile the voter numbers handed out with the number of voters: some numbers were not used or recorded; some numbers were used twice for different voters. The Board took a significant amount of time to solve the poll book reconciliation problems in order to avoid the draw down procedure. ‘The tabulators conducted an absentee ballot review checking the number of ballot certificates with the poll lists and the absentee applications. The Board reviewed the rejected ballots and defective certifications. In several cases where the application was processed at the municipal clerk's office, the Board found no witness signature on the Absentee Certificate. Testimony was taken and the Board determined that the clerk failed to sign his/her name on the Absentee Certification. The Board voted to allow the baliot to be counted so as not to disenfranchise the citizen for an administrative error. ‘The Board on the record verified the “tamper evident serial number’ on the ballot bags matched the seal ‘number on the tags and the number written on the Inspectors’ Statement (EB-104). The Board found there was no evidence of tampering with ballot bags. All the seals were intact, but some bags were not completely sealed. Some were damaged by handling. In two or three cases, duct tape was used where the ballot bag had ripped. Objections to the improperly sealed bags were recorded and those bags were counted separately by the tabulators. In addition, challenged bags were opened from the bottom, marked as an exhibit and preserved,‘There were some cases where the three numbers (bag, seal, statement) didn’t match, but most of the time human error reversed two digits. Sometimes the serial numbers were not recorded on the Inspectors’ Statement; sometimes no signatures appeared next to the serial numbers on the Inspectors’ Statement. in Cone case, no poll worker signatures appeared on the bag, Ballots were counted by hand according to the Supreme Court Recount Plan (4/26/11). The Board reviewed rejected, spoiled and remade ballots. Some of these ballots were marked as exhibits, where required, and the Board's decision preserved. In a few reporting units, the number of probable absentee ballots exceeded the number of proper certifications. A draw down of no more than one or two ballots was necessary. The Board reconciled the number of ballots with the number of voters for each of the 194 reporting units in ‘Waukesha County. Following the directive of the GAB, where several units were located at the same polling, place, the reconciliation could cover all the units. Batlot/voter discrepancies in one unit could be reconciled with numbers from another unit voting at the same location. The Board conducted a draw down in only 12 of the 194 reporting units. Draw downs involved a total of 6 absentee ballots and 13 blank ballots out of a total of over 125,000 ballots. The Board reviewed provisional ballots; there were five late arriving military ballots. Tabulators hand counted the ballots and recorded the results on separate tally sheets (EB-105). The Board marked and added in votes counted separately. Based on the careful reconciliation of the physical ballots with the poll books and absentee ballots with certificates, and for some units the election night tapes, the Board found no evidence of tampering with the ballot bags. DIRECT RECORDING ELECTRONIC (DRE) TOUCH SCREEN VOTING EQUIPMENT ‘The Board verified the voting equipment’s tamper evident serial number seal written on the Inspectors’ Statement contains the Chief Inspector's initials for pre-election and post-election verification, ‘The Board reviewed the vote totals generated by DRE at the polling place. Tabulators hand counted the permanent paper record of votes generated by DRE and recorded the results on duplicate tally sheets. DRE generated votes were added into the hand count for the reporting unit and reconciled. OPTICAL SCAN VOTING EQUIPMENT (INSIGHT) For reporting units using optical scan voting machines, the tabulators reconciled the poll lists and hand counted the number of physical ballots. Ballots were manually screened for marks that may not be correctly recorded by the machine. Screened ballots were referred to the Board for determination of voter intent and were hand counted, The Board verified the equipment’s tamper-evident serial number seal written on the Inspectors’ Statement contained the Chief Inspector's initials for pre-and post-election verification. ‘The automatic tabulator was tested using a test deck of ballots. The ballots were fed by hand into the automatic tabulator.Votes counted separately were added in and the canvass statement prepared. The above procedure was followed for municipalities using central count absentee voting. SPOILED BALLOTS A candidate’s representatives voiced a concern with spoiled ballots. The Board removed the contents of the “spoiled ballot envelope” for each reporting unit and displayed the ballot pieces. REMADE BALLOTS The Board found only two reporting units where the “remade ballot” envelope was inside the ballot bags. ‘The Board also found that poll workers often failed to document with a serial number and failed to record the reason for the remade ballot on the Inspectors’ Statement. In addition, the duplicate (remade) ballot was not marked. Thus, ina great number of instances, comparison of the original ballot with the duplicate could not be made for recount purposes. ‘The Board found in 100% of reporting units where the proper procedure was followed, the duplicate (remade) ballots matched the originals. The Board found no fraud or conspiracy with the failure to document properly. BALLOTS LACKING INITIALS Challenges were made to regular ballots and absentee ballots lacking initials. The Board took testimony from municipal clerks with respect to these omissions. The Board reviewed the ballots separately and made a record. The Board consistently counted the ballots not properly initialed because of human error. CONCLUSION ‘The purpose of the election statutes and regulations of the Government Accountability Board in a recount is to ascertain voter intent. The law disfavors disentranchising the voters and the law should be liberally construed, The primary responsibility for ascertaining voter intent rests with the election officials who all take oaths to ‘support the Constitution of the United States and the Constitution of the State of Wisconsin, from the municipal clerks to the poll workers to the tabulators to the Board of Canvass. The Waukesha County Board of Canvass took great care and pains in fulfilling their responsibility of ascertaining voter intent for the Supreme Court election of April 5, 2011. All aspects and materials in the recount were open to observation, all challenges and concerns of candidates’ representatives were heard, Each reporting unit's results were openly reconciled. ‘The reconciliations made from the election materials and ballots showed the recount results closely matched the election night results reported from the polling places as well as the results of the original canvass. ‘The Board concludes that there were no violations of the election statutes. There were cases where there was a draw down and cases where votes were added, but the count differences were not significant and did not affect the outcome. ‘The Board concludes there were no ballots removed from ballot bags, no ballots added to bags, no intent to defraud, no intent to damage ballots or election materials. Any clerical or procedural failure that the Board uncovered did not affect the outcome. In conclusion, the Board found that the intent of the voters in Waukesha County, both individually and collectively, for each candidate was revealed in the original canvass and confirmed by this recount. The number of votes cast for the office of Justice of the Supreme Court was 125,182; David T. Prosser, Jr. received 92,331 votes; Joanne F. Kloppenburg received 32,777 votes; and there were 74 votes called “scattering.”