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WisEye Morning Minute: James Sewell v. Racine Unified School District Board of Canvassers

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On Monday, as reported by Lauren Henning of the Journal Times, the Racine Unified School District’s $1 billion referendum reached the Wisconsin Supreme Court as the justices heard oral arguments regarding the 2020 results. The referendum initially passed by just five votes with a total of 33,491 votes being cast. A recount, completed by RUSD Board of Canvassers, confirmed the referendum passed by four votes. But James Sewell, Dennis Montey and George Meyers — leaders of the local group Honest Open Transparent Government — contested the results and claimed they have a right to review the ballots in open court, per Wisconsin State statute 7.54. But, a Racine County Circuit Court asserted that “the procedure utilized by the (board of canvassers) in this recount was proper and provided an accurate account.” The Wisconsin Court of Appeals District II upheld that decision. While the RUSD Board of Canvassers held the recount in an open meeting at Festival Hall and streamed it live online, Meyers maintains that the recount was not truly transparent. A focal point of debate surrounds the first sentence of statute 7.54: “In all contested election cases, the contesting parties have the right to have the ballots opened and to have all errors of the inspectors, either in counting or refusing to count any ballot, corrected by the board of canvassers or court deciding the contest.” It comes down to something even more particular: the word “or.” Even Chief Justice Annette Kingsland Ziegler said she found the use of the word “or” to be “interesting.” In this case, is the or in the statute conjunctive and inclusionary, or is it disjunctive and exclusionary? HOT Government counsel Samir Siddique argued the difference with an example of coffee. Siddique argued that the “or” in question is inclusionary, which is the status quo, per the Wisconsin drafting manual. Matthew O’Neill, counsel for the RUSD Board of Canvassers, argued that when the text, context and history of 7.54 are reviewed, Siddique’s conclusion is not the case. O’Neill pointed to 1905, when the state added a ballot security provision to the law. That 1905 addition required that all ballots — counted and uncounted — be preserved. At the same time, the sentence regarding the review of the ballots was added. At the time, there were two different routes that were taken to review ballots, depending on the circumstances. “The statute simply directed that if you’re in front of a board of canvassers, it’s the board of canvassers that corrects those errors and they have to do it in open session,” O’Neill said. “If you go quo warranto, or you’re suing under the provision at the time that allows to go to court on allegations of illegality, it would be the court doing that.”

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