By Brad Friedman on 7/3/2012, 2:50pm PT  

Now they're concerned about unsealed ballots bags? Really?! Good! But where were they last year?

On the night of Wisconsin's historic June 5th recall elections, The BRAD BLOG detailed how Scott Walker's "win," as reported by the media that night, was completely unverified by any actual human beings to be accurate in any way, shape, or form. Though voters across the state mostly used verifiable hand-marked paper ballots to vote, we explained, almost none of them are actually checked by anybody afterwards to make sure the oft-failed, easily-manipulated computer tabulator systems used across the state actually tallied the results accurately.

That was particularly important given the very same machines used in the Wisconsin recalls had, in other states in the very recent past, tallied results inaccurately (for example, check out what happened in Palm Beach County, FL, just this past March, when the very same system used to tally ballots in Waukesha County, WI, were discovered, thanks to a post-election hand count spot-check, to have named several losing candidates to be the "winners" in several municipal elections.)

The lack of verification of any of the ballots was even more disturbing given the fact that all reports by the mainstream media at the close of polls on Election Night had declared the Gubernatorial recall race to be a "dead heat," as based on raw Exit Polling data that the MSM are allowed to review throughout the day.

The next morning, after John Lehman, the Democratic challenger in the state Senate's District 21 recall election against incumbent Republican Van Wanggaard, declared premature "victory" with just under an 800-vote margin, we opined that Wanggaard should demand a full hand count of all paper ballots, and that Lehman should agree to one in order to assure the person with the most votes was actually the one declared the winner of the race. After all, majority control of the state Senate was hanging in the balance and, in any case, as in the other recall races that day, voters deserve to know for certain who lost and who won any such election, at least if we are to ever see legitimate Constitutional self-governance in this country.

Well, we've got some good news on the District 21 state Senate race, some bad news, and some extraordinarily hypocritical news to report today in our long-overdue update...

The good news: Even though the margin between Lehman and Wanggaard was larger than that in last year's disastrous state Supreme Court election debacle --- during which Republicans lambasted the Independent challenger JoAnne Kloppenburg for daring to demand a recount in her race against Republican Justice David Prosser --- the Republican Wanggaard did end up exercising his right to ask for a recount.

The bad news: Rather than going to court to demand a hand count of paper ballots, Wanggaard foolishly allowed for the "recount" to occur on the very same unreliable electronic computer tabulators that may or may not have tallied the ballots correctly in the first place. Ridiculously, machine "recounts" are the standard under WI election code, unless candidates can convince the courts to allow for a hand count. Thus, such "recounts" are exactly as reliable as the Election Night count. Which is to say, not at all. Worse, there is even less reason to have confidence in post-election counts, given the fact that they take place weeks after the election, when ballots have been in the "darkness" and legitimate questions about their secure chain of custody arise.

The ironic and jaw-droppingly hypocritical news (at least for those who closely followed The BRAD BLOG's detailed and too-often exclusive coverage of last year's state Supreme Court debacle): The Republicans are now suggesting the possibility of fraud thanks to a bag or two of ballots which showed up at the Lehman/Wanggaard "recount" apparently unsealed. Talk about chutzpah!

Now they care?

At the end of Election Night on June 5, Lehman's computer-reported lead over Wanggaard was just 779 votes out of just over 71,000 ballots cast, according to AP's tally. In the following days, after all late absentee and provisional ballots were included and certified [PDF] by the WI Government Accountability Board (G.A.B.), Lehman's margin expanded to just 834 votes.

During the machine "recount" which finally concluded on Monday, Wanggaard reportedly picked up 15 votes over all on Lehman, leaving the Democratic challenger with a final 819 vote "victory" in the race over all, pending any court contest that Wanggaard may now decide to file.

(IMPORTANT NOTE: We haven't had time to examine the "recount" numbers ourselves. If you'd like to, they are here. The key point to remember during "recounts" of this sort, however, is that media tend to report only final tally numbers. So, for example, if the post-election count, carried out by any method, finds that Candidate A picked up 50 votes in one precinct, and Candidate B picked up 51 votes in another precinct, the media will report that outcome as "Initial machine count nearly perfect! Only one vote picked up in recount!" --- when in fact some 101 votes had been miscounted in the case described above. It's possible that 202 votes had actually been mistallied in the above scenario, since a vote for Candidate A that should have gone to Candidate B actually means two votes were misreported originally by the electronic tabulators. But we've discussed that issue in the past, and this article isn't meant to focus on that particular aspect of "recounts" at the moment.)

Wanggaard says he is weighing his options as to whether he will file a challenge and, perhaps, follow the template of neighboring Minnesota Republicans who extended their court challenges in the Coleman/Franken U.S. Senate race for some eight months. In this case, a similar court-based contest, frivolous or otherwise, would succeed in keeping the state chamber from switching from Republican to Democratic control. So using the court system, inappropriately, for a Coleman-style delay wouldn't be much of a surprise.

"Unfortunately, rather than clarify the myriad of issues that surfaced on June 5, the recount uncovered even more suspicious activity," Wanggaard is quoted by WisPolitics as saying on Monday, pointing to "missing pages in poll books, missing signatures, wrong voter numbers, wrong and unverified addresses and most shocking of all, unsealed and sealed and reopened ballot bags."

We've not been able to follow this "recount" step-by-step, so can't confirm or deny any of Wanggaard's claims with any authority. But if any or all of the concerns mentioned actually occurred, taking his word for them, he is well within his rights to investigate them and challenge the election in court as appropriate.

That said, the "outrage" over "unsealed and sealed and reopened ballot bags," while certainly troubling to us, rings a bit hollow when coming from Wanggaard and his team.

Where were they last year when far --- far --- more egregious and troubling examples of "wide open" ballot bags and ballots bags with missing or scratched out or changed serial numbers and other related messes and mistallies were discovered, amounting to thousands of pages of documentation and hundreds of photographs compiled by officials during the "recount" which ultimately went completely unexamined by the G.A.B. before the race was ultimately certified in favor of the Republican Supreme Court Justice?

As Kloppenburg described when announcing she did not have the resources to carry out her own court challenge of the "widespread...cascade of irregularities" revealed during that disturbing post-election hand count:

Over 150 ballot bags containing tens of thousands of votes were found open, unsealed or torn. Waukesha County had twice as many torn, open or unsealed bags as every other county in the state combined. In many cases, municipal clerks in Waukesha testified the bags weren’t torn when they left cities, towns and villages so the security breaches occurred sometime when the bags were in Waukesha County’s custody.

With that record in mind, along with the unconscionably appalling attacks Kloppenburg received from Republican partisans for even daring to make sure that the person who received the most votes would be the one to occupy the Supreme Court seat, it's difficult to take the protestations from the Wanggaard team too terribly seriously, even though they should be.

As the Caledonia Patch reported last Friday, on Day 9 of the 11 day "recount":

[Republican attorney Jonathan] Strasburg and Wanggaard spokesman Justin Phillips say they're concerned with the security of ballots when bags are being discovered with partially opened seals.

"This is the worst ballot security I've seen in 20 years," Strasburg said.

Phillips nodded.

Really, boys? Guess you were on vacation for most of last year, eh?

But the Democratic reps had it wrong too:

"If the tallies were vastly different, then I'd say we had a problem with tampering, but these delay tactics are prolonging the process," [Democratic attorney Todd Farris] said. "The problems with the bags are not effecting the outcome so the tampering theory only works if the ballots are changed before they hit the machine."

Farris is wrong. As we detailed during the state Supreme Court mess last year, when the secure chain of custody for ballots has been broken, as with the unsealed ballot bags in that election, as well as the ones reported in the Senate District 21 race now, there is no way to know for certain that the ballots being tabulated in the "recount" are the same ones that were cast on Election Day.

If a computer memory card was gamed to misreport the tallies on the machines on Election Night (see this scene from HBO's 2006 Emmy-nominated documentary Hacking Democracy), it's not particularly difficult to cover one's tracks and change ballots to match the election night poll tapes before they are finally tallied in the "recount".

At the time we raised questions about this during the 2011 state Supreme Court "recount" debacle, we were told by the G.A.B. that there was nothing to worry about since, the original results tape produced by the voting machines on Election Night would be the ultimate arbiter. That begged, both then and now, the point of having a "recount" at all, especially when some poll tapes, as we showed you last year, were found to have been dated a full week before the actual election.

The Republican Strasburg was, appropriately, troubled by Farris' remarks, according to the Patch. "Then why have a recount at all? Isn't this about democracy?" he reported asked.

Yes, it is. On that point, Strasburg is absolutely right.

On his next point, he was absolutely wrong: "The way the city administered this election makes the Waukesha County clerk look like employee of the year."

No matter, we're glad that Republicans have decided to be concerned about the chain of custody of ballots this year, and only wish they had bothered to demand a hand count, rather than a machine count in the Senate Dist. 21 race so the voters of Wisconsin might have had some actual hope of determining who really won or lost the race.

Wanggaard has until July 10 to decide if he'll contest in court.

Fighting for citizen oversight elsewhere in the state...

In the meantime, elsewhere in the state, Election Integrity advocates are doing everything they can to try and examine both paper ballots and some of the electronic memory cartridges that appear to have been shipped out of state right after the election, in apparent violation of state law.

Just a guess --- if an informed one based on conversations we've been having of late with both Republicans and Democrats in the Badger State who are trying, but being blocked in their attempt to review paper ballots via open records requests --- but we may have more on all of this soon.

Until then, take a look at Dennis Kern's report on the mess across the entire state for those folks, of all parties, who are attempting to verify the integrity of the June 5 WI Recall elections.

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