May 2011, Week 4


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Mon, 23 May 2011 00:56:12 -0400
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Tale of the Tapes: Wisconsin's 'Dog-and-Pony Show' 
Faith-Based Supreme Court Election 'Recount'
By Brad Friedman
Brad Blog

[moderator: to view accompanying photos please use
link above.]

As the count nears its end, more irregularities emerge,
including mis-dated poll tapes, unprinted 'paper
trails,' duct taped bags and the state's unwavering
faith in the machine...

For weeks, we've been reporting on the mess seen in the
statewide "recount" of Wisconsin's very close and very
contentious April 5th Supreme Court election between
Republican incumbent Justice David Prosser and his
challenger, Asst. Attorney General JoAnne Kloppenburg.

As The BRAD BLOG obtained evidence of new irregularities
this week --- to add to previously reported revelations
of, among other irregularities, ballot bags discovered
"wide open" with mismatched or missing serial numbers as
well as ballots discovered completely unsecured, all in
violation of the secure chain of custody, and other
similar messes and mistallies across the state --- we
wanted to find out if the state's chief election agency,
the Government Accountability Board (G.A.B.), was able
to confirm that the ballots counted during the "recount"
were actually the ones cast on Election Day. And, if so,
how they could confirm that.

To date, with about 25,000 "recounted" votes still to be
canvassed from the now infamous Waukesha County, some
2,690 votes have been discovered during the "recount" to
have been originally mistallied. That's according to the
G.A.B.'s own figures, and includes hundreds of thousands
of ballots which were simply re-tallied rather than
counted by hand during the "recount," on the same
computers which tallied them --- either correctly or
incorrectly --- on Election Night.

31 out of the state's 72 counties counted some or most
of their ballots by hand for the first time during the
"recount" (including several of the largest counties).
But, given the fact that supposedly "secured" ballot
bags were discovered during the "recount" to have been
"wide open" and not secured at all, with little or no
explanation from officials, after being accessible for
weeks by the same untrustworthy and partisan election
officials, such as Waukesha's County's activist GOP
County Clerk Kathy Nickolaus, who screwed up the
tabulation in the first place, how is it that anybody
knows if the ballots finally counted by human beings are
actually genuine?

We've been trying, with no small amount of frustration,
to get a definitive answer from the G.A.B. on that
question for the past week, as well as from the
campaigns of both candidates in the race.

The G.A.B. generally agrees with the campaign of the
election's current leader, incumbent Justice David
Prosser, that broken security seals, opened ballot bags
--- even some that are torn open and taped back shut
with duct tape, as seen in Waukesha County this week
(photos below) --- and other violations of chain of
custody are of little concern. So long as the newly
tabulated results largely match the results printed on
the poll tapes by the computer tabulators at the end of
Election Night on April 5th, that is, essentially, close
enough for government work.

The G.A.B. and the Prosser campaign, as we confirmed
with each directly, and as the G.A.B. indicated on a
recent post to their website published in the wake of
the specific questions we've been asking them --- are
placing their faith largely in the accuracy of the
state's oft-failed, easily-manipulated, privately-
manufactured electronic voting systems made by companies
like Diebold, ES&S, and Sequoia. They are also placing
faith in their election official colleagues around the

All of which begs the question: What's the point of
having a "recount," or of using security procedures and
physical seals for the ballots after the election, if
violations of those procedures and seals are of little
concern to the state's top election agency?

Worse, if the results printed on the poll tapes are the
ultimate proof of the accuracy of results, what happens
when --- as discovered among poll tapes from the City of
Pewaukee in Waukesha County late last week --- the
"recount" uncovers "Official Results Report" poll tapes
dated a full seven days before the actual election was

Or, worse still, what happens when poll tapes failed to
print at all on Election Day, as has been seen in a
number of towns across the state?...

Faith-Based 'Recounts'

"Even if the container or [ballot] bag is somehow opened
later, or if the chain of custody is broken," the G.A.B.
wrote on their website in response to the concerns late
last week, "election officials have the original print-
out tape from the machine, as well as the electronic
memory device from the machine. This enables election
officials to determine the election night vote count."

Setting aside that the "recount" process in WI does not
include examination of "the electronic memory device
from the machine[s]" at all, the print-out tapes from
the systems may enable election officials to know what
the tabulation machines reported --- either accurately
or inaccurately --- as the "election night vote count,"
but do those digital elements actually tell us what the
intent of voters was? If they do, then why bother to
have a "recount" at all?

"If the ballots had been tampered with between the
election and the recount, there would be a break in the
chain of custody and an unexplained difference in the
results [of the 'recount']," says the G.A.B., suggesting
that they seem to have little or no idea how election
fraud may be carried out under their very own noses.

As reported here in great detail here over the past
month, there were definitely violations and breaks in
the chain of custody of thousands of ballots. If they
had been gamed, in order to avoid getting caught in this
very close, very high-stakes election --- for a 10-year
term on the state Supreme Court during one of the most
tumultuous periods in state history --- it's as simple
as swapping in ballots to match the totals on the gamed
poll tapes. (Gaming those tapes can be as simple as seen
in this clip from HBO's Emmy-nominated documentary
Hacking Democracy.) If one happened to have blank
ballots and knew those blank ballots would not be
reconciled, even during the "recount" (since they do not
do so in WI), and one had possession of the ballots for
a full three weeks prior to the "recount" --- as, say,
Kathy Nickolaus or any other election insider in the
state of Wisconsin had --- it would be worth both the
effort and the risk to avoid detection if one had gamed
the front end, as discovery of the dirty deed during the
"recount" would otherwise result in some very hard time.

(Not that any really high-ranking election officials
would ever do that sort of thing in election after
election, right?)

But so long as the poll tapes generally match the
"recounted" ballots, according to both the G.A.B. and
the Prosser camp, there's no problem.

When we asked the Prosser campaign if they could confirm
the authenticity of the ballots being counted in
Waukesha and elsewhere where ballot bags were discovered
with openings large enough to easily add or remove
ballots, they had no concerns. Prosser spokesperson
Brian J. Nemoir told The BRAD BLOG it all goes back to
the machines which "spit out tape with a candidate
total" on Election Night.

"You take those tape totals and compare them to the
canvass totals," he explained, even though the canvass
in WI doesn't actually include tallying of results, just
a reconciliation of the number of ballots cast with the
number of voters signed in to the poll books. "And then,
finally, you have the recount. I think it's hard to
conclude that anything was switched," says Nemoir.

Which Poll Tapes? The Ones Dated Seven Days Before the

On Friday of last week, Barbara With, one of
Kloppenburg's volunteer observers at the "recount" in
Waukesha County, was startled to watch poll tapes being
counted --- in this case, so-called "Voter Verified
Paper Audit Trails" (VVPATs) printed out by Sequoia AVC
Edge touch-screen machines from the City of Pewaukee ---
even though the dates on them read March 30, 2011, a
full seven days prior to the April 5th election.

The "Official Results Report" poll tape was dated
03/30/2011, with a time stamp of 1:40am. No one seemed
to know why, according to With.

"They confirmed the tape with the bad numbers was not a
test," With told The BRAD BLOG. "The clerk [from the
City of Pewaukee] said 'No, this is not a test. This is
it. Who knows why the numbers are wrong?'"

With says that when the clerk "was shown the piece of
paper with the mismatched date, she swore, 'No, these
votes were taken on April 5th, it's just a mismatched
date in the machine.'"

One of the people overseeing the count on behalf of
Waukesha County also instructed workers to proceed and
count the results on the tapes after the questions arose
about the date and time stamps. "I witnessed Barbara
Hansen examine the tape to assure workers that they were
not counting a test," says With.

The observer from the Prosser campaign was nonplussed.

"The Prosser guy was saying, 'Ya know when your computer
blanks out and the clock resets?' and I was like, 'No,
that's January 1st, 1980, not March 30, 2011!"

With, who had spent days as an observer at the "recount"
in four other counties as well, couldn't recall how many
of the mis-dated VVPAT votes were tallied for certain.
"I don't remember, maybe 24, but I looked at every one
of them," and they all had the wrong date, she says. She
took a few blurry shots with her cell phone (as seen at
right, and at the top of this article.)

Waukesha County, one of the most Republican-leaning in
the state, hired Hansen, "a former deputy for the state
Government Accountability Board and a 21-year employee
of the state Elections Board," according to Lisa Sink at
the Brookfield Patch, to assist retired Waukesha County
Circuit Judge Robert Mawdsley in overseeing the count

Mawdsley had been appointed to do so by the Waukesha
County Executive Committee after Nickolaus recused
herself from the "recount" the day before it began on
April 27, several weeks after the April 5 election, and
a full week after Kloppenburg had announced her
intention to file a "recount" and to request an
independent investigation of Nickolaus. Kloppenburg
charges that the G.A.B. was not suited to do the
investigation themselves, given their close working
relationship with Nickolaus and the other county clerks.

Despite her recusal, the ballots from the county of
Waukesha have been in Nickolaus' custody since at least
4pm on the day following the election.

Kloppenburg had initially been in the lead on Election
Night by a ridiculously slim 204 vote margin. At a press
conference two days later, GOP activist and County Clerk
Nickolaus stunned the state by announcing that, due to
"human error," some 14,000 votes from the City of
Brookfield had been left out of her Election Night
totals, reversing the results and giving her former
colleague and boss David Prosser a more-than-7,000 vote
lead over Kloppenburg in the statewide race. Neither the
County's Board of Canvassers nor the G.A.B. had been
informed about the "human error" until the evening
presser on Thursday, April 7, even though Nickolaus says
she discovered it on the Wednesday morning after the

It wouldn't be the first time problems and
irregularities plagued an election administered by Kathy
Nickolaus. She has compiled a long and ignominious
history of such "errors" since becoming County Clerk in
2002, after receiving immunity from criminal prosecution
in exchange for cooperating with prosecutors during a
scandal that sent a number of her and Prosser's
colleagues from the Assembly Republican Caucus to jail.

Ballot bags holding those 14,000 votes from the City of
Brookfield were among the ones found to feature some of
the most disturbing irregularities during the "recount."
While examining one of them before counting the ballots
inside, Judge Mawdsley said it had "the widest gap we
have seen in ANY of the bags so far," according to
observer Mary Magnuson who took the extraordinary photos
of "wide open" bags and scratched out serial numbers
that we published here earlier this month.

The irregular City of Pewaukee poll tapes that With
witnessed being tallied last Friday also included an
"Official Zero Proof Report" poll tape dated the day
prior to the "Official Results Report," on 03/29/11 at
11:01am. The "Zero Proof" is the test tape printed out
on the morning of the election before polls open, to
"prove" there are no votes already on the machines.

Polls in Wisconsin open at 7am and close at 8pm. Perhaps
the date on the machines was off by seven days, for some
reason, and the time by 4 hours. Perhaps the 3/29/11
"Zero Proof" at 11:01am was really printed on 4/5/11 at
7:01am as polls opened. If so, the "Official Results
Report" dated 3/30/11 at 1:40am would actually have been
printed on 4/5/11 at 9:40, a full hour and a half after
the polls closed. That still seems curious, and begs the
question as to why none of the signed witnesses on the
tapes noticed the date/time discrepancies before or
after the machine was put into service for the statewide

There is a form of "early voting" in WI, in that
absentee voters may drop off their ballots at the
municipal clerk's office prior to Election Day. Perhaps
"maybe 24" of those absentee voters voted on a touch-
screen machine at City Hall? But, if so, why would an
"Official Results Report" be printed prior to Election

With was troubled enough by the incident to write a
short letter for Judge Mawdsley last Monday, which was
also given to the Kloppenburg campaign and sent to the
G.A.B., following what she witnessed the Friday before.
The letter requested the Clerk from the City of Pewaukee
"offer testimony into the record" concerning how date
adjustments are made on the touch-screen voting
machines. Her request was not fulfilled.

The Clerk from the City of Pewaukee, Kelly Tarczewski,
has not responded to several requests from The BRAD
BLOG, via phone and email, to comment on the
irregularities. Neither has Deputy Clerk Ami Hurd. A
perfectly reasonable explanation may exist for these
irregularities, but as yet we cannot report what that
may be.

Melissa Mulliken, Kloppenburg's campaign manager, says
that while she hasn't been able to review the specifics
of what happened in the minutes (they are not available
to the campaigns or the public until after the count is
complete), her general understanding was that those
tapes were determined to be from pre-election tests, in
contrast to the detailed information provided by With to
The BRAD BLOG through several different phone
conversations and emails.

After the counts in all counties are finally complete,
the G.A.B. has three days to canvass and certify the
results. Then the Kloppenburg campaign will have just
five days to review all of the minutes and all of the
results from all 72 counties, to determine if they wish
to file a judicial review to contest the election and
challenge the extraordinary number of irregularities
that have been uncovered to date.

Or Maybe These Poll Tapes? The Ones That No Voter Ever

As if the opened ballot bags, missing and scratched-out
serial numbers, and mis-dated poll tapes aren't enough,
the minutes from the "recounts" in three different
cities in two different counties have revealed that the
so-called "Voter Verifiable Paper Audit Trails" on
touch-screen voting machines actually didn't print at
all, because the paper rolls were inserted backwards.

Most disturbingly, no one noticed or bothered to
complain about it during the election! What does that
tell us about the validity of the so-called "paper
trails" printed out with touch-screen voting machines in
Wisconsin, and the many other states which use the exact
same unverifiable voting systems?

We are always told we can "trust" the results of 100%
unverifiable touch-screen voting machines because voters
review the "paper record" before they hit the "Cast
Vote!" button. Unfortunately, as we've been explaining
for years, no, they don't --- and here, once again, is
more evidence.

The following descriptions are from the published
minutes from "recounts" in several counties where they
completed their work within the last two weeks.

From the minutes of Door County's Town of Forestville
[PDF], where they use the Diebold AccuVote ES 2000 to
tabulate paper ballots, and the Diebold AccuVote TSX
touch-screen for disabilities voters and others who
choose to use them: 

	Notes: Original Memory Cards opened and TSX
	ballots recreated as paper was in backwards on
	Election Day. Tabulators accidentally took
	original Memory Card and used the original
	Memory Card for testing recount ballots,
	thereby, resetting that card to pre-election

Total Number of TSX Ballots Counted at Recount: 20

In other words, it wasn't until the "recount" that
anyone even noticed the "paper trails" or "paper
records" of voter ballots didn't exist at all and
therefore were never verified by voters. Officials
simply used the touch-screens memory card to print them
in order to count them at the "recount." They either
accurately reflect the will of the voters who voted on
April 5, or they do not. Nobody can ever know.

The same thing happened in two different towns, with
different models of touch-screen machines made by a
different manufacturer in Taylor County [PDF], where
they use the ES&S Model 150 for optically-scanned
ballots, and the infamously-failed ES&S iVotronic Direct
Recording Electronic (DRE) system for touch-screen

Taylor County, Town of Cleveland, Ward 1: 

	A copy of ballots printed from the DRE flashcard
	was used to tally the votes from the DRE as the
	election inspectors had put the paper in
	backwards when changed later in the day and all
	of the ballots would not have been on the Real
	Time Audit Log printed on Election Day.

DRE totals were Prosser 36, Kloppenburg 19

Taylor County, Town of Pershing, Ward 1: 

	A copy of ballots printed from the DRE flashcard
	was used to tally the votes from the DRE as the
	election inspectors had put the paper in
	backwards when changed later in the day and all
	of the ballots would not have been on the Real
	Time Audit Log printed on Election Day.

The DRE totals were Prosser 16, Kloppenburg 21

The optically-scanned hand-marked paper ballots cast in
Taylor were simply run through the same op-scanners
again during the "recount," instead of being counted by

When we called the Taylor County Clerk to ask for more
information on the DRE "paper records" that didn't print
on Election Day, we were only able to leave a message
requesting a call back. We never received a return call.
The nice woman who answered the phone at the Clerk's
office and who had been at the count the day before,
however, told us that "interestingly enough," the
results of the recounts from the touch-screen systems
were the most accurate of them all!

We took some time to explain why, that the "paper
records" are simply a printout of what the computer says
the votes are, whether that's what they really were or
not. So reprinted "recount" results will always match
the results printed on the results poll tapes on
Election Night. Garbage in, garbage out, 100%
unverifiable, faith-based voting. She had no idea.

'The Machines Will Save Us'

What a difference a few years make. Back after the 2004
Presidential Election, bloggers at the left-leaning
Daily Kos website were permanently banned and their
diaries purged if they dared discuss irregularities or
the possibilities of fraud in that election. We've
mentioned that depressing point a number of times over
the years (most recently last summer during a radio
appearance with Daily Kos founder Markos Moulitsas.)

Happily, things seem to have changed for the better over
there --- at least if the great work and reporting from
Wisconsin blogger "Giles Goat Boy" throughout the
duration of the Supreme Court election "recount" is any

In a detailed diary last weekend titled "The Machines
Will Save Us", he observed some of the similar issues
concerning the G.A.B.'s reliance on "poll tapes" as
their "gold standard" for election results. He also
looked at the conflict of interest for the state's
G.A.B. in overseeing the election "recount" carried out
by the very same clerks with whom they work closely, and
to whom they offer training, throughout the year:

"Any fraud or incompetence the GAB might uncover among
municipal and county clerks is an indictment of the
GAB's ability to train and oversee those same clerks,"
he wrote. "The GAB has a huge incentive to avoid
discovery of wrongdoing."

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 his or her 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 directly 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
the 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.

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)

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."

That's just about it, according to the written statutes

In other words, as we read the applicable laws, the
election could be overturned by the court if the
Kloppenburg camp is able (and willing) to show that
enough votes for David Prosser were "irregular" due to
gross violations of chain of custody, where nobody can
swear to the authentic provenance of ballots being
included in the count.

At this hour, with approximately 21,500 votes still
being canvassed from the Waukesha "recount," there are
7,008 votes now said to be dividing the two candidates.
If an appeal were held today, the Kloppenburg campaign
would need to show that just 3,504 votes for Prosser,
out of the 1.5 million cast in the election, are
"irregular" or "defective" enough in some fashion that,
if they were excluded from the results, there is a good
"probability of an altered outcome" in the election.

Kloppenburg's campaign manager Mulliken insists they
have made no determination about whether they will
request a judicial review after the count is finally
complete, but, she told us, "We are doing our best to do
a complete and thorough job to object to these bags as
they are counted, and reviewing that record will be our
job in determining what we do after the election."

"We have to look at the record and see if it contains
information and evidence that forms the basis for a
claim. We don't know what we're going to do because the
record's not complete," she said late this week during a
phone conversation. "When the recount is over, we have
five business days to decide if we're going to ask for
judicial review. We're going to look at the facts and
decide from there."

After nearly a week of repeated attempts at finding out
how and if the G.A.B. would confirm the ballots being
counted were the same as those cast and, if so, how,
spokesperson Reid Magney finally responded directly to
the query, again, placing most of his faith in the

"There are numerous security checks throughout the
process to ensure the ballots being recounted are the
same ones cast on Election Day," he wrote in an email.
"There is a public test of the system before Election
Day. Each ballot is initialed by two poll workers. There
is a print-out made after the polls close. The hand-
recount totals have been extremely close to the machine
print-outs which, along with all the other protections
in place, confirms that they are the same ballots."

Confirmed. Really?

As expected, the Prosser campaign, as they are still on
the winning side of the reported results, have few
concerns, and generally concur with Magney's assessment,
even though they wouldn't confirm that they knew the
ballots being counted were actually the ones cast.
Spokesperson Brian Nemoir told us, "We are pretty
confident in the results reported the night of the
election and all three canvasses and now recount."

We suspect he'd be offering a different assessment if
the numbers were reversed. Unlike Democrats (which
Kloppenburg is not, she's independent) Republicans fight
aggressively at any indication of fraud when they
believe it might overturn a close election they appear
to be losing. Unfortunately, they also have a tendency
to invent such indications when needed.

Nonetheless, despite all that we have learned, Nemoir
sees no problems. "I don't think the underlying story is
that there are anomalies or concerns," he told us. "I
think the underlying story is that this recount should
provide great confidence. I think you've got a line of
strong proof that should not invoke questions but should
invoke confidence."

And if these new photos of duct taped ballot bags from
the Village of Menomonee Falls in, you guessed it,
Waukesha County (as taken by an observer who has asked
not to be identified), doesn't "invoke confidence," we
don't know what will...

* * *

Our thanks to Jeannie Dean for her invaluable help and
research on this story, as well as the members of the
Facebook Election Integrity group who have contributed
insight, eye-witness accounts, and photographs from the
ground, and various reports and analyses that have been
integral to our WI Supreme Court recount coverage over
the last several weeks.

ALSO: ProtectOurElections.org has created a "Wisconsin
Supreme Court Election Anomaly Report Form," where
observers of irregularities during the "recount"
proceedings may add their reports to a master database
for potential use in a judicial review of the election.


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