Posted: April 6, 2011

Potential Wisconsin Recount: Initial Thoughts

Upon first hearing the news that yesterday's election for a seat on Wisconsin's supreme court is extremely close and likely to involve a recount, three thoughts come quickly to mind:

First, this recount (if it occurs) will be an interesting test of Wisconsin's relatively new Government Accountability Board, which is intended as a nonpartisan alternative to election administration conducted by partisan secretaries of state.  Here at Moritz we have studied the creation of this board, and Dan Tokaji in particular has written about the potential benefits of this institutional reform.  Therefore, it will be worth comparing how this board fares during a contentious statewide recount, in contrast to the different recent experiences in Florida (2000), Washington (2004), and Minnesota (2008).  The comparison with neighboring Minnesota may prove particularly fruitful.  Although Minnesota did not have a statutory mechanism to guarantee a nonpartisan canvassing board to conduct the Coleman-Franken recount, I (among others) have argued that Minnesota lucked into an operationally nonpartisan board for that recount.  Therefore, one wonders what if any difference it might make if one has a nonpartisan board already statutorily in place.  (Of course, it is important to know exactly what jurisdiction Wisconsin's nonpartisan board may or may not have relative to the conduct of the recount itself, a matter I have not yet examined today.  The nonpartisan board may not serve its purpose if operationally the recount is conducted by other potentially partisan officials at either the state or local level--which would be something like the opposite of the Minnesota situation: a good law ineffectual in practice, rather than a suboptimal law that was operationally effective.)

Second, because this recount would involve a seat on the state supreme court, it potentially raises a host conflict-of-interest issues if there is litigation over vote-counting procedures that makes its way to the state supreme court.  In this respect, this situation reminds one of the very ugly dispute over the Chief Justice election in Alabama in 1994.  There were awkward conflict-of-interest issues, to put it mildly, when litigation over that election reached the Alabama Supreme Court.  Arguably, the failure of the state supreme court to handle those conflict-of-interest issues in a way that inspired confidence contributed to the willingness of the U.S. Court of Appeals for the Eleventh Circuit to intervene in that election, creating in Roe v. Alabama one of the most important precedents before Bush v. Gore on the authority of the federal judiciary to supervise state vote-counting procedures under the Fourteenth Amendment.  Indeed, the interpretation of the Due Process Clause of the Fourteenth Amendment, with respect to changing the rules for the counting of ballots after they have been cast, in Roe v. Alabama might have more practical significance long-term than the Equal Protection holding of Bush v. Gore itself.

Therefore, if (or as) a recount unfolds in Wisconsin, one might look for the possibility that the U.S. Court of Appeals for the Seventh Circuit might get involved in a way similar to the Eleventh Circuit's involvement in Roe v. Alabama.  As lawyers know, the Seventh Circuit is a high-powered forum, with many prominent and intellectually respected federal judges.  Therefore, if this court weighs in on the applicability of the Fourteenth Amendment to state vote-counting procedures, it will surely be an interesting and important opinion.  And, of course, if the Seventh Circuit does not get involved, that fact alone would provide an interesting comparison to Alabama's experience, and one would want to know what attributes of Wisconsin avoided that involvement.

Third, and finally, this new Wisconsin story is unfolding at the same time that the Ohio provisional ballot case, involving a local judicial election, is heading to the U.S. Supreme Court, at least in the form of a request that the high Court intervene to overturn--or at least stay--the Sixth Circuit's Equal Protection ruling there (which relied on Bush v. Gore).  It may turn out that there is no interaction whatsoever between developments in the Wisconsin and Ohio recounts involving judicial elections, but stranger things have happened.  For example, if the Seventh Circuit does get involved, it might end up writing an opinion with full knowledge of the Sixth Circuit's opinion in the Ohio case, perhaps creating a direct conflict over an issue of Fourteenth Amendment law (where no such direct "circuit split" existed previously).  Of course, this is sheer speculation at this point, and no such eventuality may unfold.  But the thought of such a possibility does spring to mind, as this new Wisconsin story is just getting under way.

REVISED April 12, 2011

Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile