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Tale of the Tapes: Wisconsin's 'Dog-and-Pony Show' Faith-Based Supreme Court Election 'Recount'

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After 18 days of meticulously blogging each day's most noteworthy "recount" news, he lashed out at the G.A.B.'s continuing assertions that if everything matches up with the computer poll tapes, there is no cause for concern: "It's become a dog-and-pony show in many ways. 'Watch as we magically conjure up the same numbers we reported on April 5th with our infallible voting machines!'"

This story is too long already, so we'll not reprint it here, but Giles Goat Boy's closing rant of frustration in his article from Days 17 & 18 of the count is well worth the read.

The pseudonymous Daily Kos blogger also links to the same recent G.A.B. article we linked above, highlighting this particular assertion from the state's chief election agency:

A hole in a ballot bag or a missing security tag is not enough evidence alone to discard the ballots inside. The ability to put a hand into a ballot bag is not by itself evidence of fraud.

True. Just because one can put their hand into a ballot bag and add or remove ballots, doesn't necessarily prove that someone committed fraud, any more than poll tapes said to be from Election Night, printed by computer systems prone to malfunction and malfeasance, prove that they did not.

As ballots in Wisconsin were not counted on Election Night, at the polls, by human beings, in front of the public, all parties and video cameras, with results posted decentralized at each ward before ballots were moved anywhere -- as per "Democracy's Gold Standard" -- and because the chain of custody has been irretrievably violated in the case of thousands of ballots, we are left with nothing but guesswork as to the authenticity of the ballots and the true results of the election.

All we now know is that, in fact, criminals -- particularly those insiders with direct and largely unfettered access to both the tabulating machines and ballots, people like Kathy Nickolaus -- easily could have committed election fraud, as the supposedly secure, supposedly documented chain of custody, which is supposed to keep that from happening, has now been completely lost for thousands of ballots in a race said to have been decided by just a few thousand votes out of some 1.5 million cast -- a reported 0.488% margin between the two candidates.

Despite those chain of custody violations, and despite the ability to actually confirm that all of the ballots counted during the "recount" were the ones actually cast, and despite the Kloppenburg campaign's objections to them, as noted for the record in the minutes when many of the irregularities were discovered, the ballots are being counted and included in the "recount" results as per WI law, at the approval and discretion of the Boards of Canvassers in Waukesha County and elsewhere.

But proving fraud is not the test for a post-recount appeal or overturning an election in the Badger State. The legal question concerns irregularities, according to Wisconsin statutes and case law.

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While the statutes are very specific on which absentee ballots are to be removed from the count due to defects such as a missing witness signature (and, in fact, during the course of the "recount," defective absentee ballots were removed from the count for that reason), they do not speak to which defects and irregularities should disqualify non-absentee ballots from being included in the count.

A review of the applicable statutes, however, makes it fairly clear that the question is not one of proving fraud, but rather, as explained in the footnotes to the Recount statutes (9.01):

Generally, to successfully challenge an election, the challenger must show the probability of an altered outcome in the absence of the challenged irregularity.

"Irregularities," according to the statutes, are to be documented throughout the recount procedure, and we have reported on far too many of them over the past several weeks here.

The statutes explain that as the "recount" of ballots begins, "The board of canvassers shall then examine the container or bag containing the ballots to be certain it has not been tampered with, opened, or opened and resealed. Any irregularities or possible tampering with the container or bag shall be noted." [9.01(1)(b)3.]

As the count continues, "The board of canvassers or the chairperson or chairperson's designee shall make specific findings of fact with respect to any irregularity...discovered during the recount." [9.01(5)(a)]

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Should the candidate choose to appeal at the end of the "recount," "The appeal shall be heard by a judge without a jury. ... Within the time ordered by the court, the appellant shall file a complaint enumerating with specificity every alleged irregularity, defect, mistake or fraud committed during the recount." [9.01(7)(b)]

That section of the code "constitutes the exclusive judicial remedy for testing the right to hold an elective office as the result of an alleged irregularity, defect or mistake committed during the voting or canvassing process." [9.01(11)]

And, as noted above, but worth repeating, "Generally, to successfully challenge an election, the challenger must show the probability of an altered outcome in the absence of the challenged irregularity."

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