Petitioners response to RUSD

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STATE OF WISCONSIN CIRCUIT COURT RACINE COUNTY
JAMES SEWELL et al
Petitioners/Appellants,
-vs- CASE NO. 2020CV001023
RACINE UNIFED SCHOOL DISTRICT
BOARD of CANVASSERS et al
Respondent.
RESPONSE TO RESPONDENT’S ANSWERS
Carrie S. Glenn, an Alderwoman in the City of Racine, personally observed at least two (2) individuals within the six-foot (6’) boundary established by the Board of Canvassers restricting observers during the recount. One of the individuals, namely, Stacy Tapp, is an employee of the Racine Unified School District.
On Thursday, April 23, 2020 Ms. Tapp signed into the recount as “support staff”. She was also observed by Carrie S. Glenn handling election materials.
The second individual within the six-foot boundary was identified as Brian O’Connell, an employee of the Racine Unified School District.
On Thursday, April 23, 2020 Mr. O’Connell signed into the recount as an “observer”. He did not sign out from the recount.
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Ms. Glenn also observed other individuals within the six-foot boundary and handling election materials that were not authorized to do so.
Additionally, the check-in/check-out table was unattended for significant periods of time.
An Affidavit from Alderwoman Carrie S. Glenn, with photographs that she took are attached as Petitioners’ Exhibit U and V.
There were numerous mathematical errors committed when determining the “Yes” and “No” votes in the final certified vote tally. On many occasions’ tabulators were observed shuffling ballots before the hand count. Thus, any shuffling or disruption of the votes contained in the “Yes” or “No” vote piles provide one possible explanation for the loss of “No” votes. Other instances were simply creating a “Yes” vote where a “No” vote should have been counted.
The following is a recitation of the specific wards and the errors that were committed in the final vote tally. Those assertations and calculations were made from the record established by the Board of Canvassers and the tabulators charged with the responsibility of ensuring a proper recount.
In reference to paragraph 39 of the complaint, we examined the vote tally in the municipality of Caledonia, wards 6, 7, 8 & 20. The tabulator’s notes indicate that there were ten drawdowns, consisting of three “yes” votes, and seven “No” votes. The voting machine tabulation was 653 “Yes” votes, and 880 “No” votes for a total of 1533 votes, with the ten drawdowns that would indicate a vote total of 1523. The tabulator’s notes indicate a certified vote tally of 651 “Yes” votes and 872 “No” votes, for a total of 1523.
The final vote tally should have been 650 “Yes” votes and 873 “No” votes, for a total of 1523.
The certified vote tally does not accurately reflect the three “Yes” and seven “No” votes corresponding to the proper drawdowns. Therefore, there was an inaccurate accounting of the vote ballots, which reflected one more “Yes” vote and one less “No” vote. As a result of that erroneous
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tally, there should have been a net of two more “No” votes over the “Yes” votes in that certified tally.
In reference to paragraph 40 of the complaint, we examined the vote tally in the municipality of Caledonia, wards 9, 10, 12 & 13. The tabulator’s notes indicate that there were three drawdowns, consisting of one “yes” vote and two “No” votes. The voting machine tabulation was 786 “Yes” votes, and 967 “No” votes for a total of 1753 votes, with the three drawdowns that would indicate a vote total of 1750. The tabulator’s notes indicate a certified vote tally of 787 “Yes” votes and 963 “No” votes, for a total of 1750.
The final vote tally should have been 784 “Yes” votes and 966 “No” votes, for a total of 1750.
The certified vote tally does not accurately reflect the one “Yes” and two “No” votes corresponding to the proper drawdowns. Therefore, there was an inaccurate accounting of the vote ballots, which reflected two more “Yes” votes and two fewer “No” votes. As a result of that erroneous tally, there should have been a net of four more “No” votes over the “Yes” votes in that tally.
In reference to paragraph 41 of the complaint, we examined the vote tally in the municipality of Caledonia, wards 16, 18 & 19. The tabulator’s notes indicate that there were no drawdowns. However, there were three remade ballots. One of the remade ballots was erroneously made a “Yes” vote. Specifically, ballot #3 was originally a “No” vote and changed to a “Yes” vote. Remade ballot # 4 was originally a “Yes” vote and changed to a “No” vote. Remade ballot # 22 was originally a “No” vote and not counted at all.
The voting machine tabulation was 334 “Yes” votes, and 643 “No” votes for a total of 977 votes.
The certified vote was 335 “Yes” and 643 “No” votes for a total of 978 votes.
The final vote tally should have been 334 “Yes” votes and 644 “No” votes, for a total of 978.
The certified vote tally inaccurately credited an additional one “Yes” and failed to include an additional one “No” vote. Therefore, there was an inaccurate accounting of the vote ballots, which
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reflected one more “Yes” vote and one less “No” vote. As a result of that erroneous tally, there should have been a net of one more “No” vote and reduction of one “Yes” vote in that tally.
In reference to paragraph 43 of the complaint, we examined the vote tally in the municipality of Sturtevant, wards 1 through 8. The tabulator’s notes indicate that there were four drawdowns, consisting of one “Yes” vote, and three “No” votes. The voting machine tabulation was 646 “Yes” votes, and 694 “No” votes for a total of 1340 votes, with four drawdowns that would indicate a vote total of 1336. The tabulator’s notes indicate a certified vote tally of 646 “Yes” votes and 690 “No” votes, for a total of 1336.
As a result of that inaccurate tally, there should have been a net of two “No” votes, for a total vote tally of 1336.
In reference to paragraph 44 of the complaint, we examined the vote tally in the municipality of Wind Point, wards 1 through 3. The tabulator’s notes indicate that there were five drawdowns, consisting of four “Yes” votes and one “No” vote. The voting machine tabulation was 456 “Yes” votes, and 424 “No” votes for a total of 880 votes, with the five drawdowns that would indicate a vote total of 875. The tabulator’s notes indicate a certified vote tally of 452 “Yes” votes and 422 “No” votes, for a total of 874.
The final vote tally should have been 452 “Yes” votes and 423 “No” votes, for a total of 875 votes in the school referendum.
The certified vote tally does not accurately reflect the 452 “Yes” votes and 423 “No” votes. Therefore, there was one less “No” vote that should have been counted. As a result of that inaccurate vote tally, there should have been a net gain of one more “No” vote. In Respondent, Racine Unified School District Board of Canvassers Answer to the Complaint, there is no accounting in the notes for an additional “Yes” vote.
In reference to paragraph 45 of the complaint, we examined the vote tally in the municipality of Racine, ward 13. The tabulator’s notes indicate that there was one drawdown, consisting of one “Yes” vote, and zero “No” votes. The voting machine tabulation was 308 “Yes” votes, and 235
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“No” votes for a total of 543 votes. The tabulator’s notes indicate a certified vote tally of 308 “Yes” votes and 235 “No” votes, for a total of 543.
The final vote tally should have been 307 “Yes” votes and 236” No” votes, for a total of 543.
The certified vote tally does not accurately reflect the one “Yes” vote and zero “No” votes corresponding to the proper drawdowns. Therefore, there was an inaccurate accounting of the vote ballots, which reflected one more “Yes” vote and one less “No” vote. As a result of that inaccurate tally, there should have been a net of two more “No” votes over the “Yes” votes in that tally.
In reference to paragraph 46 of the complaint, we examined the vote tally in the municipality of Racine, ward 14. The tabulator’s notes indicate that there were no drawdowns. The voting machine tabulation was 292 “Yes” votes and 211 “No” votes for a total of 503 votes. The tabulator’s notes indicate a certified vote tally of 292 “Yes” votes and 210 “No” votes, for a total of 502.
The final vote tally should have been 292 “Yes” votes and 211 “No” votes, for a total of 503.
Therefore, there was an inaccurate accounting of the vote ballots, which reflected one less “No” vote. As a result of that inaccurate tally, there should have been a net of one more “No” vote over the “Yes” votes in that tally.
In reference to paragraph 47 of the complaint, we examined the vote tally in the municipality of Racine, ward 20. The tabulator’s notes indicate that there were four drawdowns, consisting of one “Yes” vote, and three “No” votes. The voting machine tabulation was 422 “Yes” votes, and 356 “No” votes for a total of 778 votes, with the four drawdowns that would indicate a vote total of 774. The tabulator’s notes indicate a certified vote tally of 422 “Yes” votes and 352 “No” votes, for a total of 774.
The final vote tally should have been 421 “Yes” votes and 353 “No” votes, for a total of 774.
The certified vote tally does not accurately reflect the one “Yes” and three “No” votes corresponding to the proper drawdowns. Therefore, there was an inaccurate accounting of the vote
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ballots, which reflected one more “Yes” vote and one less “No” vote. As a result of that inaccurate vote tally, there should have been a net of two more “No” votes over the “Yes” votes in that tally.
In reference to paragraph 48 of the complaint, we examined the vote tally in the municipality of Racine, ward 32. The tabulator’s notes indicate that there was one drawdown, consisting of one “Yes” vote, and zero “No” votes. The voting machine tabulation was 155 “Yes” votes and 117 “No” votes for a total of 272 votes, with the one drawdown that would indicate a vote total of 271. The tabulator’s notes indicate a certified vote tally of 154 “Yes” votes and 116 “No” votes, for a total of 270.
The final vote tally should have been 154 “Yes” votes and 117 “No” votes, for a total of 271. As a result of that inaccurate vote tally, there should have been a net of one more “No” vote.
The certified vote tally does not accurately reflect the one “Yes” and zero “No” votes corresponding to the proper drawdowns. Therefore, there was an inaccurate accounting of the vote ballots, which reflected one less “No” vote. As a result of that inaccurate tally, there should have been a net of one more “No” vote over the “Yes” votes in that tally.
In reference to paragraph 49 of the complaint, we examined the vote tally in the municipality of Racine, ward 35. The tabulator’s notes indicate that there were two drawdowns, consisting of zero “Yes” votes, and two “No” votes. The voting machine tabulation was 227 “Yes” votes and 229 “No” votes for a total of 456 votes, with the two drawdowns that would indicate a vote total of 454. The tabulator’s notes indicate a certified vote tally of 227 “Yes” votes and 226 “No” votes, for a total of 453. The final vote tally should have been 227 “Yes” votes and 227 “No” votes, for a total of 454.
The certified vote tally does not accurately reflect the zero “Yes” and two “No” votes corresponding to the proper drawdowns. Therefore, there was an inaccurate accounting of the vote ballots, which reflected one less “No” vote. As a result of that inaccurate tally, there should have been a net of one more “No” vote over the “Yes” votes in that tally.
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In reference to paragraph 50 of the complaint, the Board of Canvassers should have used the same process to find missing ballots from Racine wards 14 and 32 that they used in Racine ward 11. In Racine ward 11, the Board of Canvassers brought in the voting machines and used images within them to retrieve the missing ballots.
In reference to Paragraph 51 in the Complaint:
1. Racine Ward 1, two originals were found but the remade ballots were not marked therefore they could not verify the original ballots.
2. Racine Ward 9, eleven duplicates were found, but the original ballots could not be located.
3. Racine Ward 12, seven original ballots were found but the duplicate ballots were not properly marked.
4. Racine Ward 16, twenty-four remade ballots were found in the log. Two original ballots and two duplicate ballots were located. In the remaining twenty duplicate ballots, the original ballots could not be found.
5. Racine Ward 20, twenty remade ballots were noted in the log. Only three original ballots were found. Thus, seventeen original ballots could not be located.
6. Racine Ward 21, fifteen remade ballots were noted in the log. Only eight original ballots could be found. Thus, seven original ballots were not found.
7. Racine Ward 24, there were six remade ballots noted in the log. None of the original ballots could be found.
8. Racine Ward 26, two remade ballots were noted in the log. No original ballots could be found.
9. Racine Ward 30, four remade ballots were noted in the log. None of the remade ballots were properly marked. Neither the original ballot or duplicate ballots were properly marked.
10. Racine Ward 31, three original ballots were missing. All three duplicate ballots relating to those original missing ballots were “Yes” votes. Four other original ballots were located. In one of those original ballots the duplicate was marked as a “Yes” vote when the individual making the duplicate ballot should have recorded it as a “No” vote. That error was brought to the attention to the Board of Canvassers and Petitioners are unaware if a correction was made. Finally, another original ballot was located, but a duplicate ballot could not be found. Thus, there was no remade ballot given credit for a “No” vote.
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In reference to paragraph 53 in the Complaint, a Brief of Respondent Racine Unified School District Board of Canvassers, page 22, VII: The mark was clearly not an "errant" mark, such as the writing instrument accidentally touching the paper. It was more than a touch, but a complete filling in of the letter 'o'. It was a mark the voter intended to make, in a qualifying place on the ballot according to 7.50(2), although in the incorrect place for the machine to read it. From Wisconsin State Statutes notes after 7.50, "A board of canvassers may use its discretion and make findings only when the standards of a statute do not apply. Sub. (2) (c) minimizing a board's discretion. When there is a qualifying mark in a qualifying place on the ballot, the vote should be counted. Roth v. LaFarge School District Board of Canvassers, 268 Wis. 2d 335, 677 N.W.2d 599 (2004)".
Referring to the Answer of Respondent Racine Unified School District Board of Canvassers, pages 5 and 19, as well as in reference to Respondents Chelsea Powell and the Yes For Our Children Referendum's Answer to Appellants Complaint, pages 8 and 29, those statements are inaccurate. Were that statement to be true, the appellants would have to be at the tabulating table at a specific time. Appellants were not able to view ballots or envelopes. Appellants were only able to view ballots or envelopes at the exact time they were being reviewed during the recount. That was the case even if the ballots in the particular ward were still being considered and the election materials were still present at the table. Appellants made many requests to view ballot and envelopes that were denied.
The Board of Canvassers informally designated two tabulators as “trouble shooters”. Said
trouble shooters were dispatched by Attorney Matthew O’Neill to assist in getting the right vote tally. One specific table, namely, number 10, ward 15 had a lot of confusion surrounding the recount. The final tally shorted the “No” vote by two votes. An objection was raised by Petitioner George Meyers that the draw downs were not reflected in their vote tally. The two “No” votes were then restored. Throughout the recount, Petitioner George Meyers observed vote tallies that were incorrect on the board.
Attorney O’Neill told Petitioner Meyers that the vote tally on the board was informative only so observers would have an idea of the progress being make in the recount. Attorney O’Neill stated
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those vote tallies would be corrected during the canvas and before the vote tally would be certified. That was not the case despite Petitioner Meyers’ objections.
On numerous occasions, throughout the entire recount, Petitioner Meyers observed Attorney O’Neill handle ballots and other election materials.
Petitioner Meyers compiled a chart containing the challenges made by the tabulators. On the chart, all wards in the City of Racine, consisting of 36 wards, had 62 challenges. All the wards outside the City of Racine, consisting of 56 wards, had 111 challenges.
Petitioner Meyers compiled a chart containing the number of envelopes that had been rejected by the clerks of the various municipalities received by the end of election day, namely, April 7, 2020. On the chart, all wards in the City of Racine had 62 envelopes. All wards outside the City of Racine had 168 envelopes.
See Petitioners’ Exhibit W.
Dated: June 17, 2020 Dated: June 17, 2020
ATTORNEY VINCENT J. BOBOT MAISTELMAN & ASSOCIATES, LLC
Attorneys for Appellants Attorneys for Appellants
/s/ /s/
Vincent J. Bobot Michael S. Maistelman
State Bar No. 1020732 State Bar No. 1024681
Post Office Address: Post Office Address:
Vincent J. Bobot Maistelman & Associates, LLC
5414 S. 13th Street 8989 N. Port Washington Rd. #207
Milwaukee, WI 53221-4420 Milwaukee, WI 53217
(414) 430-1249 (414) 908-4254
(414) 282-9522 (414) 447-0232 Fax
vincentjbobot@gmail.com msm@maistelmanlaw.com