In a few weeks, a group of volunteers will don latex gloves, huddle around a table in downtown Madison under the watchful eyes of election clerks and start counting - by hand - a select group of ballots cast in the June 5 recall elections.
Mary Magnuson, an electoral reform activist, submitted an open records request to the Madison city clerk on June 14 asking to inspect "any and all ballots," including optical scanned ballots and absentee ballots, that were cast in Wards 16, 19, 39, 40 and 100 in the recall election against Gov. Scott Walker. She also asked to inspect the tapes used in the scanners and any inspectors' reports prepared by poll workers.
Magnuson, who lives in Brookfield, has made similar requests to nine other municipalities. Another group, Hand Count Votes Now!, filed open records requests on July 2 with all of the state's 72 county clerks to review recall ballots. Margy Lambert, one of the group's main organizers, says the timing was critical - clerks are allowed to destroy ballots from state elections 30 days after an election.
Hand Count Votes Now! has also recently joined forces with Wisconsin Wave, a group that grew out of the uprising against Walker. Wisconsin Wave is fundraising, recruiting and scheduling volunteers, while Lambert's group is providing volunteer training.
These activists are concerned about election fraud, not to be confused with voter fraud. Republicans have monopologized the latter issue, claiming that felons and other ineligible voters have cast ballots due to lax access to the polls. Although such incidents are extremely rare in Wisconsin, Republican state legislators approved a voter ID law last year that tightened residency requirements and mandated photo identification at the polls. On Tuesday, Dane County Circuit Court Judge David Flanagan permanently barred enforcement of the photo ID requirements of the law, ruling that they create a "substantial impairment" to the constitutional right to vote.
Election fraud, meanwhile, has become the province of progressives. "Election fraud is where people could change the outcome of an election by manipulating the vote totals that are tabulated by machines," says Middleton attorney and activist Jim Mueller.
The recent statewide push for the hand counting of ballots has grown, in large part, from frustration over the final results of the gubernatorial recall election. Lambert and others point to the fact that Gov. Walker won by seven points when final exit polls had him neck-and-neck with challenger Tom Barrett.
"It's one of the things that doesn't make sense," she says.
Activists are concerned about both the accuracy of electronic voting machines and their vulnerability to tampering.
Mueller helped start a Facebook page, Wisconsin Citizens for Election Protection, after observing the May 2011 recount of ballots cast in Waukesha County in the Wisconsin Supreme Court race between Justice David Prosser and challenger JoAnne Kloppenburg.
Mueller says he was dismayed by what he saw at the Waukesha county clerk's office, including improperly sealed ballot bags and leftover, unvoted ballots from Election Day.
He says the state's election system lacks sufficient checks against voting machine tampering and malfunction. There is little oversight of the software used in touch-screen machines, and local election officials are not allowed to count the votes by hand to compare to the tabulated numbers from the machines, says Mueller. Even in the case of a recount, optical scan ballots are put through the same machines used on Election Day.
"I've been stressing for a long time that it's possible for mistakes and cheating to take place because we've eliminated transparency in our elections," says Mueller.
After Magnuson submitted her open records requests, Kevin Kennedy, executive director of the Government Accountability Board, informed her in a June 27 email that "under state law no one may touch a voted ballot after it has been deposited in a voting device or ballot box except an election official." He cited Wisconsin Statutes sec. 9.01.(1)(b)11.
Kennedy also said that Magnuson and others might have to pay for election officials to retrieve and show the documents.
Madison City Clerk Maribeth Witzel-Behl emailed Magnuson on June 29 to say that she had asked the City Attorney's Office to review Kennedy's instructions relative to the open records law. On July 11, she emailed again to say that she spoke to Dane County Clerk Karen Peters, the legal custodian of the ballots, and that Peters was "willing to let you touch the ballots, as long as you wear gloves provided by us for that purpose and sign an oath that you will not alter anything." Magnuson says it is her understanding that there won't be any charges for staff time. Witzel-Behl did not respond to a request for confirmation.
In an interview, Reid Magney, spokesman for the Government Accountability Board, points to a letter Kennedy sent on July 3 to election officials that appears to back away from the directives in his email to Magnuson.
"The GAB is not the state's authority on public records, so what we have been saying to county clerks is here is some general guidance; however this is not legal advice," says Magney. Clerks need to consult with their corporation counsels and, if need be, the attorney general, he adds.
Magney, however, is confident in the system and says there should be little concern about election fraud. For starters, all electronic machines in the state must have a "voter-verified paper trail," he says.
Voters can see their votes on a paper tape before pressing a button to confirm their choices, Magney explains. "That is a requirement that not all states have," he says.
Magney says there is very little opportunity for rigging the vote. "How much of a conspiracy would you have to have?"
He says that there's a public test of each machine before every election "to ensure that [the machines] are accurately recording the vote." He also notes that there are 1,851 municipal clerks in the state who work with 72 county clerks. "Wisconsin has the most decentralized election system in the country."
"I think that should give the public confidence in the outcome and tabulation of these elections."
Magney also says that recent recounts have found no voting irregularities. Moreover, the recent audit in Rock County by Hand Count Votes Now! of ballots cast in the gubernatorial recall election "turned out perfect."
Lambert agrees that no discrepancies were found in the ballots checked in Rock County, but says her group only viewed a sampling of wards and have tentative plans to go back.
Lambert and Magnuson both say that in the vast majority of cases they don't question the integrity of clerk staff or poll workers. "We're questioning the integrity of the machines," says Lambert.
"These workers care about people voting, and they want to make sure every vote counts. And so do we."
[Editor's note: This story was changed to correctly note the name of the group, Hand Count Votes Now!]