Embracing What’s Next

By Heath P. Straka, WAJ President, Axley Brynelson, LLP 

There are many things around the proverbial corner that may impact our clients and our practices. We have spent much of the past two years focused on the ups and downs of the legislative process. Immediately after the legislative session ended, a major portion of our attention turned to the fever-paced election season that followed. While we may not know with precision the policy outcomes that will emerge as the next administration begins working with the legislature, we can embrace the certainty of knowing who the line-up will be.

Wisconsin featured close elections at the top of the ticket.  As all know, Tony Evers won another state-wide race to become the Governor-elect.  Evers prevailed with a winning margin of, at the time of this writing, roughly 1.2 percent or approximately 30,800 votes out of approximately 2.7 million cast. While the Attorney General’s race stands at a slightly smaller margin, just less than 1 percent or approximately 22,000 votes, the canvasing and tabulation process continued without drama or invective. Even with a close contest, Josh Kaul prevailed without meaningful controversy.

It is a credit to our election administrators at all levels that the 2018 elections went off without a hitch in Wisconsin. We can instead take pride in the fact that turnout was exceedingly high -- 60 percent of the voting-age population -- which is a record for a Wisconsin midterm election. Even with the record turnout, there were few problems reported and we can cherish the fact that we knew the results on election night (err, in the early morning after!). Moreover, any potentially lingering controversy had been settled by Wednesday afternoon, November 7. We must also take a moment to reflect upon and praise the straightforward process that would have played out had recounts been required.

Wisconsin law currently provides clear guidance on recounts. While the administration of the election was smooth, so too is the legal framework that governs the process. The pertinent law was recently changed to prevent abuse of the recount process. The change came in 2017 (following the 2016 Presidential election) to prevent (or at least chill the possibility of) high-margin losing candidates from requesting recounts that stood little chance of affecting the result.

Pursuant to the current law, recounts may be requested by a losing candidate whose total votes are within a 1 percent margin of the winning candidate in any election featuring at least 4,000 votes. The State pays the cost of recounts featuring margins of 0.25 percent or smaller. In all other cases, the candidate filing the petition for a recount must pay a filing fee and must cover costs.

Compare the quick and tidy process featured in Wisconsin with the messier outcomes playing out in Florida, Georgia, Arizona and California. While there is no credible allegation of bad acts or election fraud on any side, the slow process of tabulating votes in a variety of formats slows the process and gives opportunity for some to raise questions. In Florida, for example, both the Senate and Governor’s races will be decided after a recount. The same is true for the Georgia Governor’s race – where a runoff may decide the next governor. In each of these larger population states, there is a multi-step process. For example, in Florida a margin of less than 0.25 percent requires a time-consuming hand recount, whereas close elections with a margin between 0.5 percent and 0.25 percent receive a “machine” recount. The Florida Senate contest, at the time of this writing, was primed for a hand recount following the completion of the initial count nearly a week after election day (if the close margin holds). It may take weeks to know the “final” results.

Against this backdrop, the precision and efficiency of the election in Wisconsin stands out even more. Wisconsin allows early voting and same-day registration as well as traditional vote-by-mail absentee ballots.  None of these features proved an impediment to quick, efficient counting.

While we can take solace in the fact that we know the outcome of Wisconsin’s hard-fought election, it means WAJ must continue moving forward with the strategic, considered approach that we have made our mantra over the past several years. We have worked hard to make alliances on both sides of the aisle and we will continue standing up for the right to a trial by jury at the Capitol in Madison and in every community throughout the state.   

As technology continues to change our world, we must be nimble, thoughtful and prepared to face whatever is around the corner. So too must the law. Our clients, now and in the future, demand and require that competent effective representation is available when they need justice.

As I reflect on my Presidency, I recall being thrown into a heated legislative session on Day One (in what was supposed to be a calm year, legislatively speaking). It started with the most wide-ranging changes to our civil procedure that we have ever seen in one legislative session.  Through our newly crafted alliances and partnerships, we were able to have a significant seat at the table to minimize the effect on our clients.  The year progressed with special elections in the State Senate and a newly minted Supreme Court Justice.  All of whom seem poised to protect the right to trial by jury. 

My year has rapidly come to a close – featuring a party shift in the Executive Branch at the State Capitol and the navigation of a lame-duck session.  It also ends with my knowing we are continuing to thrive as an Association.  Through our continued and collective hard work, WAJ is ready for what’s next.

It’s been my honor to serve you.  I hope I’ve done my predecessors proud.

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