On November 9, 2022, the Wisconsin Elections Commission (“Commission”) conducted its public selection of contests and reporting units for the 2022 Post-Election Voting Equipment Audit. All selected reporting units were notified of their audit participation status, but more information on the audit selection and associated processes can be found here: https://elections.wi.gov/2022-voting-equipment-audit.
It is important that selected reporting units not begin the public audit and testing processes until after county canvasses have been completed and the deadline to request any recount has expired. Performing the audit prior to the recount deadline, or completion of the recount if one has been requested, could result in chain of custody questions, complaints, or other issues. When the Commission set the parameters for the audit on September 21, 2022, the six-member body explicitly required that: “Any recount of any ballots must precede the audit of those ballots.” The Commission may opt not to accept any audit activities or materials that were conducted prior to that point, and audit participants will be forced to conduct the activities over again. The Commission also instructed that the deadline for selected reporting units to submit audit materials is December 2, 2022.
Currently, the statewide office of Wisconsin Secretary of State stands within the margin for recount (second candidate trails leading candidate by 1% or less). The race is bordering on the margin that would allow the aggrieved candidate to request a cost-free recount (the margin for cost-free recounts is .25% or less—unofficial results show the current separation at ~.26%). As such, audit activities should be postponed until 5 p.m. on the third business day following the completion of the last county canvass, and if a recount petition is filed, until all recount activities are finalized. (See Wis. Stat. § 9.01(1)(a)1.) The deadline for counties to submit their canvass statements to the state is November 22, 2022, meaning the latest possible date for a recount to be requested (if canvass statements are not received until the 22nd) is November 28, 2022. Given this potential for a statewide recount, the earliest deadline for audited municipalities to submit materials to the Commission has moved to December 2, 2022.
The Commission will send a communication once all canvass statements are received, so that you can begin planning for the potential of a recount or for your audits. WEC is also tracking county canvass statements as they are received on our website, Status of Received County Canvasses for the November 8, 2022 General Election | Wisconsin Elections Commission. If a statewide recount is requested, or if there is a local recount that affects your municipality, your deadline to submit audit materials would be December 23.
As a reminder to reporting units selected to perform public audit activities, Wis. Stat. § 7.08(6) is the state embodiment of § 301(a)(5) of the Help America Vote Act of 2002 (HAVA) (52 USC §21081) and requires the Commission to audit each voting system that is used in this state following all general elections:
ENFORCEMENT OF FEDERAL VOTING SYSTEM STANDARDS. Following each general election, audit the performance of each voting system used in this state to determine the error rate of the system in counting ballots that are validly cast by electors. If the error rate exceeds the rate permitted under standards of the federal election commission in effect on October 29, 2002, the commission shall take remedial action and order remedial action to be taken by affected counties and municipalities to ensure compliance with the standards. Each county and municipality shall comply with any order received under this subsection.
Please contact the Audit Team at @email or by phone at (608) 261-2028 if you have any questions. Thank you for your prompt attention to this matter.