Michael Maistelman said irregularities in deciding whether absentee ballots should be allowed or rejected, and possible differences in the way this decision is made among the three counties in the 47th District, might require taking the recount, ultimately, to court.
"We may have to have a judge look at all those ballots," he said.
The recount was completed in one day Monday in Sauk County, where only two precincts, representing about 800 votes, are included in the 47th District.
In Dane and Columbia counties, however, there was no end in sight as of Wednesday evening.
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Maistelman, who has been present at the Columbia County recount continuously since it began Monday, said he believes the canvass has turned up numerous absentee ballots - some of them requested by fax or e-mail - that did not include the required signature of the voter or other information that state law requires for verification of absentee ballots.
In all cases when an absentee ballot is rejected for not meeting legal requirements, Maistelman said, a random absentee ballot should be drawn from the precinct where the rejected ballot was cast, and that ballot should not be counted in the vote total.
Although absentee ballots are separated from those cast on Election Day, the drawdown from absentee ballots would have to be random because usually there is no way to determine which specific ballot was cast by the voter whose absentee ballot was ruled invalid.
Maistelman said he believes this procedure is not being followed consistently in Columbia County, and possibly not in the other two counties. As a result, he said, there could be ballots that should have been rejected and subjected to a drawdown, but were not.
County Clerk Sue Moll said there had been several incidents Wednesday in which a random ballot was drawn down because an absentee voter was ruled disqualified.
One of the incidents involved an overseas voter from the town of Springvale who requested, received and cast an absentee ballot, but poll officials could not find the required accompanying documentation such as the voter's signature, address information, age verification and a witness's signature and address. All of this information is typically written on the outside of an official envelope in which most absentee ballots are returned, though the information can be submitted by other methods of written communication.
Moll said the clerk at the voter's precinct knew that the voter had cast a ballot for federal offices only, meaning that the ballot would not have been a factor in the 47th District race, which was for a state office. In that situation, she said, the board of canvass could have opted not to do a drawdown if representatives from the candidates had no objection.
However, objections from both Ripp's and O'Neil's representatives prompted the board to draw a ballot randomly and not count it, she said. No one was supposed to look at which candidates were marked on the drawn-down ballot before all the votes from the precinct were tabulated.
Particularly problematic, Maistelman said, are absentee ballots that were requested by e-mail, in which the accompanying information is also submitted by e-mail. A signature submitted by e-mail should not be considered valid, he said, because it's too easy to falsify.
