Understanding an Election Contest
An election contest is not a simple recount, though a recount is often the first step. A recount verifies the vote count, while a contest is a formal legal proceeding in circuit court to challenge the legitimacy of an election's result based on specific alleged errors or illegalities. This legal action argues that due to defects, mistakes, or fraud, the declared winner did not actually win the election. Contests can challenge whether proper procedures were followed by election officials, if illegal votes were counted, or if legal votes were improperly discarded. The process is governed by Wisconsin Statute 9.01, which lays out the exclusive remedy for an aggrieved candidate to challenge an election outcome in court.
Who Is Eligible to File?
Not just anyone can formally
contest an election. The right to file is generally limited to an 'aggrieved candidate'. In Wisconsin, this is typically defined as a candidate who lost an election by a narrow margin. Specifically, for races with more than 4,000 votes cast, the petitioner must have a vote total within 1% of the winner's total. For smaller elections with 4,000 or fewer votes, the margin must be 40 votes or less. For a referendum, any qualified elector who voted on the measure can file a petition. The first step for an aggrieved candidate is almost always to petition for a recount with the appropriate filing officer—the Wisconsin Elections Commission for state offices or the local county or municipal clerk for local races.
The Recount: A Necessary First Step
Before you can contest an election in court, you must first go through the recount process. A verified petition for a recount must be filed no later than 5 p.m. on the third business day after the county board of canvassers makes its final determination. The petition must state the basis for the recount request. There are no automatic recounts in Wisconsin, regardless of how close the margin is. The cost of the recount depends on the margin. If the difference is 0.25% or less (in races with over 4,000 votes), the recount is state-funded. If the margin is larger, the petitioner must pay the estimated cost. The recount is conducted by the board of canvassers and must be completed within 13 days.
Filing the Contest in Circuit Court
If the recount does not resolve the issue and the candidate still believes the outcome is incorrect due to fraud or error, they can then file an appeal in circuit court. This is the actual 'election contest'. This appeal must be filed within five business days after the recount is completed and the board of canvassers has made its determination. The court action allows for a deeper review of the evidence. During the contest, the court can examine ballots, hear testimony, and correct errors made by election inspectors in counting or rejecting ballots. The burden of proof is on the person challenging the election to show, by clear and convincing evidence, that the outcome would have been different without the alleged irregularities.
Potential Grounds for a Contest
An election contest must be based on specific allegations, not just a general sense of unfairness. The petitioner must state the reason for their challenge. Common grounds for a contest include claims of fraud, bribery, or other illegal actions that influenced the election. Other valid reasons might involve mistakes by election officials, such as improperly rejecting absentee ballots, errors in tabulating votes that were not corrected during the recount, or allowing unqualified individuals to vote. The challenger must provide sufficient information to support these claims; frivolous challenges can be dismissed and may carry penalties.
