On the Election Integrity Facebook page, I saw this incredible bureaucrat's response about hand counting of ballots:


GAB-Counting Votes is a Crime!?

By Jim Mueller in Election Integrity

I assume when you say "actually count the votes" you mean conduct a hand count on election night in addition to the required procedures for tabulating votes processed by electronic voting equipment. The G.A.B.'s position is not that such a separate hand count is equivalent to performing a recount, as a recount involves a more rigorous and specific review of additional election records. Recounts are conducted pursuant to a specific statutory provision and only a candidate may request a recount under 9.01, Stats.

As you recall, in my July 25th letter to you, I stated that chief inspectors may grant a request that observers be allowed to visually inspect ballots on Election Night. It is our position, however, that inspectors may not conduct a second tabulation of ballots without specific statutory authority. Section 5.85, Wis. Stats. establishes the procedures for receiving, counting, tallying and return of ballots, which do not include hand counting of ballots which have already been tabulated by an electronic voting system. Absent a court order that supercedes the statutory provisions, therefore, there is no legal authority to conduct a hand count of ballots which have been tabulated electronically. As you know, section 5.40, Stats., requires municipalities with a population of 7500 or more to use voting machines or electronic voting systems unless a waiver has been requested and granted.

Regarding enforcement, there are two potential remedies or consequences involving inspectors or clerks who fail to comply with the procedures established by law. Under section 5.06, Stats., the G.A.B. may issue an order that election officials conform their conduct to the law or to restrain officials from taking any action inconsistent with the law. I believe the Board would view a hand count of ballots on Election Night in municipalities where they are required to be electronically tabulated as inconsistent with the statutory procedures, and that we would likely issue an order to prevent that action. Section 5.05(1)(d), Stats., also authorizes the Board to seek the assistance of the courts in enforcing such orders. In addition, section 12.13(2)(a), Stats. states that the willful neglect or refusal by an election official to perform any of the duties prescribed by the election laws constitutes election fraud. Intentionally conducting an unauthorized hand count of ballots might be considered failing to perform the duties specified by the Statutes. Pursuant to section 12.60(3), Stats., an election official who is convicted of election fraud shall be disqualified to act as an election official for five years subsequent to the conviction.

The G.A.B. has not received any complaint against an election official due to ballots being improperly handcounted on Election Night, and we are not aware of any incident where that has occurred contrary to the Statutes.

I hope this information is helpful.

Michael Haas
Staff Counsel
Wisconsin Government Accountability Board