A Door County observer from the 2016 Wisconsin recount reports:

Observers were seated apart from the people counting the votes, so the actual ballots are not visible to observers. ... In addition, while there were people going through the poll lists to validate the numbers, those numbers were never announced to observers. Therefore, observers could not ensure that the number of voters and the number of votes were equal. This is especially concerning in light of other reports where the number of votes exceeded the number of voters. If this were to happen in Door County, the observers would be unaware of it.
- Pam, Door County

Is it typical of a properly conducted recount that observers not be permitted to see the ballots?


I can't answer about typical, but I can quote what the Wisconsin laws actually say about it. (All emphasis mine)

Paper ballots: Each tabulation team should begin by sorting the ballots into stacks: One stack for each candidate (ballots that clearly indicate a vote for a ballot candidate or a valid write-in candidate) and one stack for ballots where no vote may be counted (defective ballots, votes for invalid write-in candidates, etc). Candidate representatives should be given the opportunity to review each ballot as it is sorted, and may request that the tabulators set aside questionable ballots for closer examination and determination of voter intent by the board of canvassers.

Optical scan: Each ballot shall be reviewed by the board of canvassers and may be inspected by the candidates or their representatives before being inserted into the tabulator. If it appears the ballot may not be recorded correctly by the tabulator, or if the ballot is objected to, the ballot is set aside to be examined by the board of canvassers for voter intent and counted separately by hand.

For digital machines, the paper trail is cut into individual votes, then appears to follow the paper process, although it's not explicitly mentioned.

Note that in none of these do independent observers have the right to see the ballots. In fact, under the heading of "Who can attend the recount?" it says:

Any person may attend the recount. This includes the candidates, their representatives or legal counsel, media representatives, and any other interested persons. ...

The canvass board members and the tabulators are the only persons who may handle and touch the ballots and other election materials. The board of canvassers must, however, allow the candidates and their representatives and/or legal counsel to view and identify the election materials.

The board of canvassers shall exercise reasonable control over the conduct of the recount to assure that the canvassers and tabulators do not experience interference from any person observing the recount. All persons who are not under the supervision of the board of canvassers are considered observers and are subject to the observer rules established by the Wisconsin Elections Commission and the board of canvassers. All observers shall wear badges or nametags identifying themselves and their role (candidate, media, etc.)

The board of canvassers may establish marked observer areas and ask that observers remain within those areas unless otherwise permitted by the board of canvassers. If there is not sufficient room for all observers to view the election materials, preference shall be given to candidates or their representatives. The use of video or still cameras inside the recount room is permitted unless it is disruptive or interferes with the recount. The board of canvassers may enforce reasonable restrictions on items brought into the recount room such as marking devices, food, or drink.

If any observer engages in disruptive behavior that in the opinion of the board of canvassers threatens the orderly conduct of the recount, the board of canvassers shall issue a warning and if the observer does not cease the offending conduct, order the observer’s removal.

In other words, it's perfectly legal for the board to have everyone who isn't officially associated with a candidate sit on one side of the room watching people on the other side of the room count. Only the candidate and their representatives have any right to actually be close enough to see the ballots (and even then they can't touch).

  • Thanks for finding those laws. They seem to set a pretty reasonable set of rules in my opinion. But I don't follow your interpretation "independent observers [do not] get to examine the ballots.". It depends what you exactly mean by "examine", but it seems to me that according to the law you quote, any observers can examine them, by looking closely at them during all the recount process. Similarly, in a museum you can "examine" a painting as long as you want, but not touch it. – Joël Dec 5 '16 at 4:50
  • @Joël - Basically, it goes back to the OP's question. If you're not a representative of a candidate, you don't have any explicit right to look at the ballots themselves. You just get to watch the process from as far away (or as close) as the designated area is. If you're able to see them, great; if not, too bad. – Bobson Dec 5 '16 at 11:36
  • That's really not how I interpret the law, and I am sure a judge would agree with me. "Examine" doesn't mean "watch from as far away" as one tells you. It means that you can get as close as you want to have a good view of everything. If the Door County observer of the question was refused this, it is illegal and a complaint should be filled. The only justification for refusing an observer is when the surrounding of the counting table are already full of other observers, but this doesn't seem to be what happened based on the report, who says that all observers were kept apart. – Joël Dec 5 '16 at 13:37
  • @Joël - Maybe I chose a bad word there - "examine" is not part of the law at all. To quote it again: "The board of canvassers must, however, allow the candidates and their representatives and/or legal counsel to view and identify the election materials." Nowhere does it say that observers other than candidates and their representatives have any right to view the ballots. I've edited my word choice. – Bobson Dec 5 '16 at 13:53
  • @Bobson, it's unclear what the distinction between representative and observer is; i.e. under these WI laws is a Green Party Observer a representative of the Green Party? – agc Dec 6 '16 at 5:52

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