An appeals court ruled that a challenge to a Rock County supervisor’s 3-vote victory was frivolous and ordered repayment of her legal fees. Now the challenger is asking the Supreme Court to take the case.

By Peter Cameron, THE BADGER PROJECT

The murky waters of election recounts and challenges in Wisconsin got a little clearer earlier this year.

An appeals court ruling upholding a Rock County supervisor’s 3-vote electoral victory ruled in March that absentee ballots cannot be thrown out just because a clerk forgot to initial them.

While the ruling doesn’t break any significant new legal ground, it “should provide added clarity for future recounts,” Robert Yablon, a professor at the UW-Madison Law School, wrote in an email to The Badger Project.

The supervisor, Genia Stevens, defeated her challenger, Tammy Gonfiantini, by the tiny margin in the technically nonpartisan race.

Gonfiantini challenged three ballots that were missing the signatures. Both the lowest level circuit court and a state appeals court both ruled that the ballots could not be thrown away.

The decision “reaffirmed that voters shouldn’t be disenfranchised because of clerical or poll worker error,” Stevens said in an email to The Badger Project. “That’s a principle I think we should all stand behind, regardless of political leanings.”

The appeals court also ruled Gonfiantini’s case was “frivolous” and ordered her to pay Stevens’ legal fees.

Ruling a case to be frivolous is a “fairly high bar,” Yablon said.

Despite that, Gonfiantini has asked the Wisconsin Supreme Court to hear the case.

Gonfiantini’s attorney, Erik Olsen, argued in his petition that the appeals court decision erred and contradicts previous case law. The state’s highest court should step in to set the record straight, he argued.

“This case presents a purely legal question that is certainly likely to recur in future elections,” he wrote. “There are many elections every year that are very close. With an increase in the use of absentee voting, it is important for voters and election workers to have a clear answer on this question. This is a novel question because there has not been a case addressing challenges made at recounts to unendorsed absentee ballots since the last major set of statutory revisions.”

Stevens said the decision to appeal the case again is “disappointing.”

“By continuing to pursue this, Ms. Gonfiantini is dragging out a process that has already consumed significant public resources and created unnecessary tension in the community,” she wrote in an email to The Badger Project. “It’s time to move on and get back to the work voters elected us to do.”

The Wisconsin Supreme Court must now decide if it wants to take the case or let the appeals court’s decision stand.

DISCLOSURE: Genia Stevens’ nonprofit Rock County Jumpstart and The Badger Project share the same fiscal sponsor, The Center for Community Stewardship, in Madison.

The Badger Project is a nonpartisan, citizen-supported journalism nonprofit in Wisconsin.