Chapter 5 refused because, based on a letter the clerk had received from the executive director of the state board of elections, the notice had been published too late to hold the referendum. However, the legal counsel for the state board of elections said the referendum election could be valid if held. The county board of supervisors meanwhile passed a resolution directing the county clerk to distribute the referendum ballots, and if he did not, directing the chairman of the county board to distribute the ballots. The county clerk continued to refuse to distribute the ballots so the county board chairman appointed a committee to print and distribute the ballots to all municipal precinct clerks. Then the county clerk sent a letter to all election clerks, drafted by a lawyer for a group opposing the move, warning the clerks not to distribute the ballots and saying they could be subject to criminal liability if they did. The district attorney then sent a letter to the clerks urging them to distribute the ballots and saying it was not illegal to distribute the ballots. These and other gyrations led up to election day, November 2, 1976, when the referendum ballots were distributed in 16 towns in the eastern part of the county but not distributed in eight towns in the western part of the county. Accordingly, there were 2,578 people (or 40% of the county’s voters) who were denied referendum ballots. The referendum passed 3,257 votes to 588 votes. Further complications ensued during the process of certifying the referendum results, but on September 9, 1977, the results were certified (actually, because of the complications, they were recertified), and on September 25, 1977, the Town of Siren was proclaimed the Burnett County seat.89 The lawsuit challenging the certification was filed on December 9, 1977. The trial court found “reasonable doubt overall that the election fairly represented the will of the voters of Burnett County,” and voided the election. Relying on the principles of traditional election dispute cases, and following an 1894 decision by the Wisconsin Supreme Court, the court of appeals reversed the trial court’s decision. In this 1894 case, 18 qualified voters were mistakenly thought not to be qualified voters and were not allowed to vote. The 18 had testified that they were going to vote for a candidate who had lost the election by 13 votes; their votes would have made him the winner by five votes. In this case, the Wisconsin Supreme Court did not count the extra 18 ballots, following what it characterized as public policy considerations,90 and said that the election results should stand and that steps should be taken so the irregularities would not recur in the future elections. Following the appeals court’s decision, the plaintiffs in McNally (the 1981 case) appealed to the Wisconsin Supreme Court. First the Wisconsin Supreme Court dealt with the numerous violations of statutory requirements involved in the case saying, [T]he Court has traditionally looked to the specific statutory election provisions involved to determine whether they were “directory or mandatory” provisions. The Court has consistently sought to preserve the will of the electors by construing election provisions as directory if there has been substantial compliance with their terms… This case, however, is fundamentally different from other election cases considered by this Court… 89 90 In a final absurdity, the proclamation was revoked in December 1978. The supreme court reasoned that it was dangerous to rely on post-election statements of how people would have voted on election day, and that a court would not be more certain about an election result by getting oral evidence after the election, even though individuals may have been deprived of their votes. This can be contrasted with the situation in Nugent, where voters testified about how they had voted. 111