Wisconsin Court of Appeals issues opinion that voting ballots lacking endorsements from elections officials must be counted
On March 6, 2025, the Wisconsin Court of Appeals (Dist. IV) issued a must-read election law opinion declining to toss out three ballots cast in a Rock County election. Gonfiantini v. Rock Cnty. Bd. of Canvassers, No. 2024AP1233 (Wis. Ct. App. March 6, 2025) (recommended for publication). The three ballots were not initialed (i.e. “endorsed”) by the appropriate elections officials as required by statute. In rejecting the losing candidate’s ballot challenge, the court concluded that the lack of an endorsement alone did not warrant rejecting the ballots. And, in a rare move, the court imposed sanctions on Gonfiantini’s attorney for filing a frivolous appeal.
The facts of the case
In the April 2024 election for Rock County Board of Supervisors, the Board of Canvassers declared Regenia Stevens the winner over Tammy Gonfiantini by three votes. Id., ¶3. Gonfiantini petitioned for a recount pursuant to Wis. Stat. § 9.01, which provides the exclusive procedure for seeking a recount under Wisconsin election law. During the recount, she asserted that three ballots (two absentee and one “ExpressVote”) lacked endorsements by the appropriate election officials and should not be counted. Gonfiantini, No. 2024AP1233, ¶¶4-6, 6 n.3, 8. The Board of Canvassers rejected Gonfiantini’s challenges. Id., ¶6. The circuit court followed suit and dismissed Gonfiantini’s complaint. Id., ¶¶10, 11. Gonfiantini appealed to District IV. Stevens moved for sanctions against Gonfiantini for filing a frivolous appeal.
The court’s analysis of Gonfiantini’s claim
The primary issue before the court of appeals was whether ballots lacking the endorsement of the necessary election official under either Wis. Stat. §§ 6.87(1) (requiring absentee ballots to be endorsed by the issuing clerk) or 7.37 (requiring in-person ballots to be endorsed by two elections inspectors) must be rejected or counted. Gonfiantini, No. 2024AP1233, ¶¶16-17. In answering that question, the court commenced with the presumption that absent an express statutory provision compelling rejection of the ballots, rejection was not an appropriate penalty. Id., ¶17. It then analyzed the language and history of several pertinent election statutes in search of such an express provision, including: Wis. Stat. §§ 6.80 (governing in-person election day voting), 6.88 (governing casting and recording ballots on election day), 7.51 (governing election day canvassing procedures), and 9.01(b) (setting out the recount procedure). Gonfiantini, No. 2024AP123, ¶19.
With regard to in-person voting, the court observed that although Wis. Stat. § 6.80(2) provides a mechanism to correct ballots lacking endorsements, it does not impose any penalty for lack of endorsement alone. Gonfiantini, No. 2024AP1233, ¶20. Regarding absentee ballots, the court noted that Wis. Stat. § 6.88(3)(b) expressly enumerates permissible reasons for rejecting absentee ballots and does not identify a missing endorsement as one such reason. Gonfiantini, No. 2024AP1233, ¶¶21-24. The court declined to read language into the statute the legislature did not see fit to use. Id., ¶24. The court also noted that in 1970, the legislature eliminated language from the ballot endorsement statutes that expressly directed election inspectors to reject unendorsed ballots. Id., ¶¶32-33. Instead, the court concluded that Wis. Stat. §§ 7.51 and 9.01(b) identify the sole circumstance in which in-person or absentee ballots may be set aside due to lack of endorsement: namely, during a “draw down” situation, which occurs when the number of ballots cast exceeds the number of electors recorded in the poll books. Gonfiantini, No. 2024AP1233, ¶¶19, 25-28. And, even then, unendorsed ballots may only be set aside when other statutory measures taken to reconcile the numbers prove ineffective. Id. That situation was not at play in Gonfiantini. Based on the unambiguous language of these provisions and the statutory history, the court concluded that ballots may not be rejected for lack of endorsement alone. Id., ¶29.
Gonfiantini failed to address these statutes and instead argued that Wis. Stat. § 6.84 broadly required the court to construe statutes regulating absentee voting as “mandatory” such that ballots cast in contravention of them “‘may not be counted’ or ‘included in the certified result of any election.’” Gonfiantini, No. 2024AP1233, ¶30. Gonfiantini’s reliance on § 6.84 had “[o]ne significant problem”: namely, subsection (2) of the statute expressly enumerates the provisions governing absentee ballots that must be construed as mandatory, and the endorsement requirement is not among them. Gonfiantini, No. 2024AP1233, ¶30. Consequently, the statute did not apply. Id.
The court easily rejected Gonfiantini’s remaining arguments, id., ¶¶34-48, including her reliance on a parenthetical from Logic v. City of South Milwaukee Bd. of Canvassers, 2004 WI App 219, 277 Wis. 2d 421, 689 N.W.2d 692, and her vague allegations of fraud as “not only frivolous, but also deeply troubling.” Gonfiantini, No. 2024AP1233, ¶34.
The court’s award of costs and fees to Gonfiantini’s Opponent
Finally, the court took up Stevens’ motion for costs and fees pursuant to Wis. Stat. §§ 809.25(3) and 895.044(5). A party is only entitled to costs and fees if the opposing party’s “entire appeal is frivolous.” Gonfiantini, No. 2024AP1233, ¶51. This is a high bar. But here the court concluded that Gonfiantini’s entire appeal was supported solely by frivolous arguments, including her “misconstruction” of Logic, and her unsupported assertions of fraud. Gonfiantini, No. 2024AP1233, ¶53. The court sanctioned Gonfiantini’s attorney, noting its duty to maintain the integrity of the judicial system. Id., ¶¶52-53.
Takeaways
Even after Gonfiantini, voters should remain vigilant for missing endorsements. Voters who observe a missing endorsement at the polls should return their ballot to the inspectors for proper endorsement to avoid having their votes set aside in a draw down. But apart from the draw-down situation, Gonfiantini’s refusal to disenfranchise voters based solely on the clerk’s or inspectors’ inadvertent endorsement errors is a significant win for democracy. The opinion’s stern responses to Gonfiantini’s unsupported allegations of fraud coupled with the panel’s decision to impose sanctions on her attorney should also serve as a caution for those seeking to cast doubt on the results of an election who lack the evidentiary support.
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