Appeals court rules in St. Croix County Board election recount case
A St. Croix County Board candidate embroiled in a 2018 election recount dispute is making his case to the Wisconsin Supreme Court after an appeals court rejected his argument.
New Richmond resident Ryan Sherley, a District 13 candidate who drew exactly as many votes as incumbent Scottie Ard, petitioned Monday, May 28, for the state's high court to hear his case.
The request follows an April 30 decision by the Wisconsin Court of Appeals denying Sherley's argument that a St. Croix County Circuit Court judge erred in his handling of the recount matter once it moved into the courts.
Judge Edward Vlack had set aside the St. Croix County Board of Canvassers decision declaring Sherley the winner of the April 3, 2018, election after a recount was settled by a "drawdown" of ballots. In addition to ruling against the drawdown procedure, Vlack ruled that a ballot accidentally cast by a New Richmond voter from District 12 for Sherley should have been excluded from the recount.
The judge's ruling called for a new recount, which prompted Sherley's appeal.
In the appeal, Sherley argued the ballot cast by the District 12 voter should be awarded to him since that person was a "fully qualified Wisconsin voter," according to the appellate ruling. Sherley cited a Wisconsin Supreme Court statement that a "ballot legally cast cannot be rejected if it expresses the will of the voter."
The appeals court noted that voters are only qualified electors in the election districts they live in.
"Therefore, the will of the voter who cast the Sherley ballot is irrelevant — because the ballot was not legally cast in the District 13 election," the appeals court wrote.
Sherley also argued against Vlack's ruling that the Board of Canvassers erred in conducting its drawdown, a procedure in which ballots are randomly removed to determine a winner in some recount matters. A Wisconsin Elections Commission official advised against instituting the procedure during the District 13 recount, but the Board of Commissioners voted 2-1 to apply it.
The board moved ahead with the drawdown in order to solve a three-vote difference caused by three District 12 voters who were accidentally given District 13 ballots. But rather than conduct the recount after removing ballots from the wards where the irregularities occurred, the board opted to draw out three ballots after combining all 443 ballots cast in District 13.
The drawdown handed the victory to Sherley after one of his ballots was removed, while two Ard ballots were pulled out. That prompted Ard to challenge the process in court.
Vlack sided with Ard; the judge said the drawdown should have been conducted on a ward-by-ward basis.
The appeals court concurred with Vlack and Ard, citing state statutes calling for recounts to be conducted by wards.
"In addition to being compelled by the statute, we agree with Ard that a ward-by-ward drawdown is preferable to a district-wide drawdown because it avoids unnecessarily disenfranchising voters in wards where there were voting irregularities," the appeals court wrote.
The panel noted that the drawdown process conducted in any manner will invariably disenfranchise some voters by having their ballots removed. "However, limiting the pool of potentially disenfranchised voters to only those wards where voting irregularities occurred avoids arbitrarily exposing voters in wards where there is no indication of error to disenfranchisement," the three-judge panel wrote.
The appeals court also denied Sherley's contention that the circuit court lacked jurisdiction to review the ballot and recount matters.