AB904: Bill Text

LRB-3692/3

JTK:cs:jf

2007 - 2008 LEGISLATURE

2007 Assembly BILL 904

March 4, 2008 - Introduced by Representatives Albers, Huebsch, J. Fitzgerald, Rhoades, Hahn, Jeskewitz, Vos, Strachota, Owens, Townsend, Montgomery, Nerison, Kaufert, Tauchen, Lothian, Ballweg, Hines, Van Roy, Musser, Suder, Kestell, Mursau, LeMahieu, Gunderson, Nygren, Kerkman and Pridemore. Referred to Committee on Elections and Constitutional Law.

AB904,1,10 An Act to renumber and amend 6.34 (1) (a); to amend 5.06 (1), 5.06 (3), 5.06 (4), 5.06 (5), 5.06 (6), 6.22 (6), 6.221 (2), 6.36 (1) (a), 6.82 (2) (a), 6.865 (3m) (a), 6.87 (5), 6.875 (4) (b), 6.875 (6) (c) 1., 6.88 (3) (a), 6.88 (3) (b), 7.08 (3) (intro.), 7.15 (5), 7.15 (6) (a), 7.51 (2) (b), 7.51 (2) (c), 7.51 (2) (d), 7.51 (2) (e), 7.51 (5) (b), 7.52 (3) (a), 7.52 (3) (b), 7.52 (4) (b), 7.52 (4) (c), 7.52 (4) (d), 7.52 (4) (e), 7.60 (1), 9.01 (1) (b) (intro.), 9.01 (1) (b) 2., 9.01 (1) (b) 4. a. and b., 9.01 (1) (b) 4. c., 9.01 (1) (b) 4. d., 9.01 (1) (b) 4. e., 9.01 (1) (b) 5., 9.01 (5) (a), 10.02 (3) (g), 12.13 (3) (j) and 12.60 (1) (b); and to create 5.02 (2m), 6.275 (3), 6.79 (2) (f), 7.30 (2) (d), 9.01 (1) (at), 12.13 (2) (b) 9., 12.13 (2) (c) and 12.13 (4) of the statutes; relating to: administration of elections and providing penalties.

Analysis by the Legislative Reference Bureau

This bill makes various changes in laws relating to elections administration. The changes include:

1. Currently, all election officials are required to comply with the election laws and valid administrative rules promulgated by the Government Accountability Board. This bill requires, in addition, that all officials comply with valid applicable requirements of the election manual that is published by the Government Accountability Board. The bill further provides that if a municipal clerk is found to have violated the election laws or any applicable requirement of the election manual or is restrained from violating the laws or applicable requirement of the manual, the clerk may not participate in assisting a municipal board of canvassers in conducting a recount. The bill instead provides that the clerk's appointing authority shall designate the municipal clerk of another municipality to assist the board of canvassers with the recount. The bill also provides that if an individual who serves as a poll worker is found to have committed any such violation or is restrained from any such violation, the individual may not serve again until the municipal clerk or executive director of the board of election commissioners of the municipality where the individual serves certifies that the individual has successfully completed a training program. In addition, the bill provides that no individual may serve as a poll worker if a complaint against the individual is pending before the Government Accountability Board or during the pendency of an appeal of a decision of the board relating to the individual.

2. Currently, when the number of ballots cast in a ward or election district exceeds the number of voting electors indicated on the poll list, the board of canvassers lays aside blank ballots. The board of canvassers then lays aside any ballots not bearing the required initials of the municipal clerk or executive director of the board of election commissioners or their deputies or the initials of the inspectors (poll workers). If there is an excess number of absentee ballots, the board of canvassers draws out a number of absentee ballots equal to the excess number, and, if there is an excess number of nonabsentee ballots, the board of canvassers draws out a number of nonabsentee ballots equal to the excess number. The board of canvassers then counts only the remaining ballots. This bill provides that the board of canvassers must exclude any marked ballot cast by any of the following electors from this process: 1) a member of a uniformed service on active duty who, by reason of that duty, is absent from the residence where the member is otherwise qualified to vote; or 2) a member of the merchant marine who, by reason of service in the merchant marine, is absent from the residence where the member is otherwise qualified to vote.

3. Currently, an absentee ballot must have the initials of the municipal clerk or executive director of the city board of election commissioners by whom the ballot is issued or the initials of a deputy clerk or a deputy appointed by the executive director written on the back before the ballot is cast. The statutes also provide that the election laws shall be construed to give effect to the will of the electors, if that will is ascertainable, notwithstanding any informality or failure to comply with the law. This bill provides that in no case may an absentee ballot that does not bear the required initials be counted.

4. Currently, each ballot that is distributed to electors has a space on the back for the initials of the two inspectors (poll workers) who give the ballot to an elector who qualifies to cast the ballot. This bill provides specifically that these inspectors shall initial the ballot when it is given to the elector who casts it and may not initial any ballots before that time.

5. Currently, an elector who has difficulty in voting because of a disability or inability to read, write, or understand English may request the assistance of any individual of his or her choice in voting his or her ballot, except the elector's employer or an agent of that employer or an officer or agent of the elector's labor organization. The assistance may be provided either at a polling place or at a site where an absentee ballot is cast. This bill precludes an elector from obtaining the assistance of a municipal clerk or deputy clerk, or the executive director of a city board of election commissioners or a deputy designated by the executive director. Violators are guilty of a misdemeanor and may be fined not more than $1,000 or imprisoned for not more than six months, or both.

6. Currently, an elector who resides in a nursing home or in a community-based residential facility or retirement home meeting certain standards may vote in the home or facility with the assistance of two special voting deputies who are dispatched by the municipal clerk or board of election commissioners. Currently, election inspectors (poll workers) are prohibited from advising or suggesting how any ballot should be voted. This bill prohibits any individual who renders assistance at a polling place or absentee balloting site, as well as any deputy who renders assistance at a nursing or retirement home or a community-based residential facility, from advising an elector to vote for or against any candidate. Any person who violates the prohibition is guilty of a felony and may be fined not more than $10,000 or imprisoned for not more than three years and six months, or both. The bill also precludes any individual who has assisted with the campaign of any candidate at an election from serving as a special voting deputy at the election at which that candidate's name appears on the ballot.

7. Currently, where ballots are distributed to electors at an election, each municipal clerk and board of election commissioners must keep a record of when and in what condition ballots are received from the county clerk and must deliver unopened packages of ballots to the election inspectors (poll workers) at each polling place. This bill provides that each municipal clerk and board of election commissioners must count and record the number of ballots delivered from the county clerk or, if the municipality prepares its own ballots, from the ballot supplier for each election. The bill also directs each municipal clerk and board of election commissioners to keep a record of the number of ballots used as absentee ballots, the number of ballots delivered to each polling place before each election, and the number of voted, spoiled, and unused ballots returned to the clerk or board from each polling place after each election. In addition, the bill directs each municipal clerk and board of election commissioners to report to the Government Accountability Board after each election the number of ballots delivered to the clerk or board, the number of substitute ballots printed by the clerk or board, if any, the number of ballots cast, the number of ballots spoiled, and the number of unused ballots returned to the clerk or board. Finally, the bill also requires each municipal clerk and board of election commissioners to secure access to all unused ballots.

8. Currently, each municipal clerk or board of election commissioners must deliver all ballots, statements, tally sheets, lists, and envelopes relating to each technical college, county, state, or national election to the county clerk or board of election commissioners no later than 4 p.m. on the day after each election. The county clerk or board of election commissioners must retain them until destruction is permitted by law. This bill provides that the municipal clerk or executive director of the board of election commissioners or a deputy under direction of the clerk or executive director must personally deliver the ballots and other materials to the county clerk or board of election commissioners. The bill also requires the county clerk or board of election commissioners to keep the clerk's or board's office open on the day after each election until all ballots, statements, tally sheets, lists, and envelopes relating to the election have been received.

9. Currently, if an absentee ballot is open or has been opened or resealed, the ballot is not counted. This bill provides that this procedure also applies to ballots enclosed in unsealed envelopes. Currently, if an absentee ballot is recounted, it is discounted only if it is not witnessed, it is not signed by the voter, or if the certificate accompanying the ballot is missing. This bill provides, in addition, that an absentee ballot shall not be counted in a recount if the absentee ballot envelope was open or unsealed when it was received by the inspectors.

10. Currently, if there are insufficient ballots printed to serve the number of qualified electors who wish to vote, the municipal clerk or board of election commissioners of the municipality where the shortage occurs must provide sufficient substitute ballots to meet demand. This bill provides no election official may duplicate a ballot that bears the initials of an election inspector. Violators are guilty of a misdemeanor and may be fined not more than $1,000 or imprisoned for not more than six months, or both

11. Currently, the Government Accountability Board is directed to prepare and publish an election manual for the use of election officials in interpreting and implementing the election laws. This bill provides that each step performed by a board of canvassers in conducting a recount must be consistent with applicable law and applicable requirements of the manual.

12. Currently, when a board of canvassers or the chairperson of the Government Accountability Board or its designee conducts a recount, the board or chairperson or designee is directed to keep minutes of the proceedings before the board or the chairperson or designee. This bill requires the minutes to include a description of each step in the recount process that is performed by the board or the chairperson or designee and the findings of the board or the chairperson or designee with respect to each step performed by the board or the chairperson or designee during the recount process, if any. The bill also provides that the board of canvassers may take testimony and may question an elector concerning the process of voting or assistance provided to the elector, but shall not question an elector as to which candidates or questions the elector voted for or against. Any person who violates the prohibition is guilty of a misdemeanor and may be fined not more than $1,000 or imprisoned for not more than six months, or both, and for a 2nd or subsequent offense occurring within five years, the person is guilty of a felony and may be fined not more than $10,000 or imprisoned for not more than three years and six months, or both.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB904, s. 1 Section 1. 5.02 (2m) of the statutes is created to read:

AB904,5,3 5.02 (2m) "Deputy clerk" includes a deputy who is appointed by the executive director of a board of election commissioners.

AB904, s. 2 Section 2. 5.06 (1) of the statutes is amended to read:

AB904,6,2 5.06 (1) Whenever any elector of a jurisdiction or district served by an election official believes that a decision or action of the official or the failure of the official to act with respect to any matter concerning nominations, qualifications of candidates, voting qualifications, including residence, ward division and numbering, recall, ballot preparation, election administration or conduct of elections is contrary to law or to any applicable requirement of the election manual published under s. 7.08 (3), or the official has abused the discretion vested in him or her by law with respect to any such matter, the elector may file a written sworn complaint with the board requesting that the official be required to conform his or her conduct to the law or to any applicable requirement of the manual, be restrained from taking any action inconsistent with the law or any applicable requirement of the manual or be required to correct any action or decision inconsistent with the law or an applicable requirement of the manual or any abuse of the discretion vested in him or her by law. The complaint shall set forth such facts as are within the knowledge of the complainant to show probable cause to believe that a violation of a law or an applicable requirement of the manual or an abuse of discretion has occurred or will occur. The complaint may be accompanied by relevant supporting documents. The board may conduct a hearing on the matter in the manner prescribed for treatment of contested cases under ch. 227 if it believes such action to be appropriate.

AB904, s. 3 Section 3. 5.06 (3) of the statutes is amended to read:

AB904,6,8 5.06 (3) A complaint under this section shall be filed promptly so as not to prejudice the rights of any other party. In no case may a complaint relating to nominations, qualifications of candidates or ballot preparation be filed later than 10 days after the complainant knew or should have known that a violation of law or abuse of discretion occurred or was proposed to occur.

AB904, s. 4 Section 4. 5.06 (4) of the statutes is amended to read:

AB904,6,16 5.06 (4) The board may, on its own motion, investigate and determine whether any election official, with respect to any matter concerning nominations, qualifications of candidates, voting qualifications, including residence, ward division and numbering, recall, ballot preparation, election administration or conduct of elections, has failed to comply with the law or any applicable requirement of the election manual published under s. 7.08 (3) or abused the discretion vested in him or her by law or proposes to do so.

AB904, s. 5 Section 5. 5.06 (5) of the statutes is amended to read:

AB904,6,24 5.06 (5) Upon receipt of a complaint under sub. (1), or upon its own motion, the board may order any election official to immediately transfer to its possession any original documents in the custody of the official which the board finds to be necessary and relevant to permit review of compliance with the laws and the applicable requirements of the election manual published under s. 7.08 (3) concerning nominations, qualifications of candidates, ward division and numbering, recall or ballot preparation or the proper administration of such laws.

AB904, s. 6 Section 6. 5.06 (6) of the statutes is amended to read:

AB904,7,9 5.06 (6) The board may, after such investigation as it deems appropriate, summarily decide the matter before it and, by order, require any election official to conform his or her conduct to the law and applicable requirements of the election manual published under s. 7.08 (3), restrain an official from taking any action inconsistent with the law or the applicable requirements of the manual or require an official to correct any action or decision inconsistent with the law or an applicable requirement of the manual. The board shall immediately transmit a copy of the order to the official. An order issued under this subsection is effective immediately or at such later time as may be specified in the order.

AB904, s. 7 Section 7. 6.22 (6) of the statutes is amended to read:

AB904,7,23 6.22 (6) Military elector list. Each municipal clerk shall keep an up-to-date list of all eligible military electors who reside in the municipality; city clerks shall keep the lists by wards. The list shall contain the name, latest-known military residence and military mailing address of each military elector. The list shall indicate whether each elector whose name appears on the list is a military elector, as defined in s. 6.36 (2) (c) 6.34 (1) (a), and whether the military elector qualifies under s. 6.34 (1) (a) 1., 2., or 3., and has so certified under s. 6.865 (3m). All persons over 18 years of age or who will be 18 years old prior to an election shall be listed and remain on the list for the duration of their tour of duty. The list shall be kept current through all possible means. Each clerk shall exercise reasonable care to avoid duplication of names or listing anyone who is not eligible to vote. Each clerk shall distribute 2 copies of the list to the appropriate ward in the municipality for use on election day.

AB904, s. 8 Section 8. 6.221 (2) of the statutes is amended to read:

AB904,8,5 6.221 (2) Each certificate envelope that is mailed or transmitted to a military elector under this section shall be clearly labeled as "Cast by a military elector under s. 6.221, Wis. Stats., and may be eligible to be counted after election day". The certificate envelope shall also indicate whether the military elector qualifies under s. 6.34 (1) (a) 1., 2., or 3.

AB904, s. 9 Section 9. 6.275 (3) of the statutes is created to read:

AB904,8,14 6.275 (3) Within 30 days after each primary and other election, including any special election, that is held in a municipality in which ballots are distributed to electors, the municipal clerk or board of election commissioners shall make a written statement to the board specifying the number of ballots delivered to the clerk or board of election commissioners, the number of substitute ballots printed by the clerk or board of election commissioners, if any, the number of ballots cast, the number of ballots spoiled, and the number of unused ballots returned to the clerk or board of election commissioners.

AB904, s. 10 Section 10. 6.34 (1) (a) of the statutes is renumbered 6.34 (1) (a) (intro.) and amended to read:

AB904,8,17 6.34 (1) (a) (intro.) "Military elector" means a any of the following:

AB904,8,19 1. A member of a uniformed service on active duty who, by reason of that duty, is absent from the residence where the member is otherwise qualified to vote; a.

AB904,8,22 2. A member of the merchant marine, as defined in s. 6.22 (1) (a), who by reason of service in the merchant marine, is absent from the residence where the member is otherwise qualified to vote; or the.

AB904,8,25 3. The spouse or dependent of any such member who, by reason of the duty or service of the member, is absent from the residence where the spouse or dependent is otherwise qualified to vote.

AB904, s. 11 Section 11. 6.36 (1) (a) of the statutes is amended to read:

AB904,9,18 6.36 (1) (a) The board shall compile and maintain electronically an official registration list. The list shall contain the name and address of each registered elector in the state, the date of birth of the elector, the ward and aldermanic district of the elector, if any, and, for each elector, a unique registration identification number assigned by the board, the number of a valid operator's license issued to the elector under ch. 343, if any, or the last 4 digits of the elector's social security account number, if any, any identification serial number issued to the elector under s. 6.47 (3), the date of any election in which the elector votes, an indication of whether the elector is a military elector, as defined in sub. (2) (c) s. 6.34 (1) (a), who has so certified under s. 6.865 (3m), and whether the elector qualifies as such under s. 6.34 (1) (a) 1., 2., or 3., an indication of whether the elector is an overseas elector, as defined in s. 6.24 (1), any information relating to the elector that appears on the current list transmitted to the board by the department of corrections under s. 301.03 (20) 301.03 (20m), an indication of any accommodation required under s. 5.25 (4) (a) to permit voting by the elector, an indication of the method by which the elector's registration form was received, and such other information as may be determined by the board to facilitate administration of elector registration requirements.

AB904, s. 12 Section 12. 6.79 (2) (f) of the statutes is created to read:

AB904,9,24 6.79 (2) (f) Upon providing an elector with a slip under par. (e), 2 inspectors shall place their initials on a blank ballot designated for the ward or election district where the elector resides and one of them shall give the ballot to the elector. No inspector may place his or her initials on a ballot prior to the time that the ballot is given to the elector who casts the ballot.

AB904, s. 13 Section 13. 6.82 (2) (a) of the statutes is amended to read:

AB904,10,13 6.82 (2) (a) If an elector declares to the presiding election official that he or she cannot read or write, or has difficulty in reading, writing or understanding English or that due to disability is unable to mark a ballot or depress a button or lever on a voting machine, the elector shall be informed by the officials that he or she may have assistance. When assistance is requested, the elector may select any individual other than a municipal clerk or deputy clerk to assist in casting his or her vote. The selected individual rendering assistance may not be the elector's employer or an agent of that employer or an officer or agent of a labor organization which represents the elector. The selected individual shall not advise the elector to vote for or against any candidate. For purposes of this paragraph, advice includes any gesture or other visual or verbal indication of a preferred candidate. The selected individual shall certify on the back of the ballot that it was marked with his or her assistance. Where voting machines are used, certification shall be made on the registration list.

AB904, s. 14 Section 14. 6.865 (3m) (a) of the statutes is amended to read:

AB904,11,2 6.865 (3m) (a) Except as provided in par. (c), if any elector who certifies that he or she will be a military elector on election day requests an absentee ballot, the municipal clerk shall send or transmit to the elector an absentee ballot for all elections that occur in the municipality or portion thereof where the elector resides beginning on the date that the clerk receives the request and ending on the day after the 3rd successive general election that follows receipt of the request, unless the elector otherwise requests. In addition, the municipal clerk shall continue to send or transmit to the elector an absentee ballot for all elections ending on the day after the 3rd successive general election that follows any election at which the elector returns an absentee ballot under this section or renews his or her request under par. (c). A military elector who makes a certification under this paragraph shall indicate whether the elector qualifies as a military elector under s. 6.34 (1) (a) 1., 2., or 3.

AB904, s. 15 Section 15. 6.87 (5) of the statutes is amended to read:

AB904,11,13 6.87 (5) If the absent elector declares that he or she is unable to read, has difficulty in reading, writing or understanding English or due to disability is unable to mark his or her ballot, the elector may select any individual, except a municipal clerk or a deputy clerk, the elector's employer or an agent of that employer, or an officer or agent of a labor organization which represents the elector, to assist in marking the ballot, and the assistant shall then sign his or her name to a certification on the back of the ballot, as provided under s. 5.55. The selected individual shall not advise the absent elector to vote for or against any candidate. For purposes of this subsection, advice includes any gesture or other visual or verbal indication of a preferred candidate.

AB904, s. 16 Section 16. 6.875 (4) (b) of the statutes is amended to read:

AB904,12,5 6.875 (4) (b) Nominations for the special voting deputy positions described in par. (a) may be submitted by the 2 recognized political parties whose candidates for governor or president received the greatest numbers of votes in the municipality at the most recent general election. The deputies shall be specially appointed to carry out the duties under par. (a) for the period specified in s. 7.30 (6) (a). The clerk or board of election commissioners may revoke an appointment at any time. No individual who is employed or retained, or within the 2 years preceding appointment has been employed or retained, at a nursing home or qualified retirement home or qualified community-based residential facility in the municipality, or any member of the individual's immediate family, as defined in s. 19.42 (7), may be appointed to serve as a deputy. No individual who has assisted with the campaign of any candidate at an election may serve as a special voting deputy under this section at the election at which that candidate's name appears on the ballot. The clerk or board of election commissioners shall appoint an election inspector of the municipality to serve in place of any individual who is precluded from serving under this paragraph at a particular election.

AB904, s. 17 Section 17. 6.875 (6) (c) 1. of the statutes is amended to read:

AB904,12,21 6.875 (6) (c) 1. Upon their visit to the home or facility under par. (a), the deputies shall personally offer each elector who has filed a proper application for an absentee ballot the opportunity to cast his or her absentee ballot. If an elector is present who has not filed a proper application for an absentee ballot, the 2 deputies may accept an application from the elector and shall issue a ballot to the elector if the elector is qualified and the application is proper. The deputies shall each witness the certification and may, upon request of the elector, assist the elector in marking the elector's ballot. All voting shall be conducted in the presence of the deputies. Neither of the deputies may advise the elector to vote for or against any candidate. For purposes of this subdivision, advice includes any gesture or other visual or verbal indication of a preferred candidate. Upon request of the elector, a relative of the elector who is present in the room may assist the elector in marking the elector's ballot. No individual other than a deputy may witness the certification and no individual other than a deputy or relative of an elector may render voting assistance to the elector.

AB904, s. 18 Section 18. 6.88 (3) (a) of the statutes is amended to read:

AB904,13,20 6.88 (3) (a) Except in municipalities where absentee ballots are canvassed under s. 7.52, at any time between the opening and closing of the polls on election day, the inspectors shall, in the same room where votes are being cast, in such a manner that members of the public can hear and see the procedures, open the carrier envelope only, and announce the name of the absent elector or the identification serial number of the absent elector if the elector has a confidential listing under s. 6.47 (2). When the inspectors find that the certification has been properly executed, the applicant is a qualified elector of the ward or election district, and the applicant has not voted in the election, they shall enter an indication on the poll list next to the applicant's name indicating an absentee ballot is cast by the elector. They shall then open the envelope containing the ballot in a manner so as not to deface or destroy the certification thereon. The inspectors shall take out the ballot without unfolding it or permitting it to be unfolded or examined. Unless the ballot is cast under s. 6.95, the inspectors shall verify that the ballot has been endorsed by the issuing clerk. If the certificate envelope indicates that the ballot is cast by a military elector, as defined in s. 6.34 (1) (a) 1. or 2., the inspectors shall write on the back of the ballot "Military elector s. 6.34 (1) (a) 1. or 2., stats.". If the poll list indicates that proof of residence under s. 6.34 is required and no proof of residence is enclosed or the name or address on the document that is provided is not the same as the name and address shown on the poll list, the inspectors shall proceed as provided under s. 6.97 (2). The inspectors shall then deposit the ballot into the proper ballot box and enter the absent elector's name or voting number after his or her name on the poll list in the same manner as if the elector had been present and voted in person.

AB904, s. 19 Section 19. 6.88 (3) (b) of the statutes is amended to read:

AB904,14,12 6.88 (3) (b) When the inspectors find that a certification is insufficient, that the applicant is not a qualified elector in the ward or election district, that the ballot envelope is open or unsealed or has been opened and resealed, that the ballot envelope contains more than one ballot of any one kind or, except in municipalities where absentee ballots are canvassed under s. 7.52, that the certificate of an elector who received an absentee ballot by facsimile transmission or electronic mail is missing, or if proof is submitted to the inspectors that an elector voting an absentee ballot has since died, the inspectors shall not count the ballot. The inspectors shall endorse every ballot not counted on the back, "rejected (giving the reason)". The inspectors shall reinsert each rejected ballot into the certificate envelope in which it was delivered and enclose the certificate envelopes and ballots, and securely seal the ballots and envelopes in an envelope marked for rejected absentee ballots. The inspectors shall endorse the envelope, "rejected ballots" with a statement of the ward or election district and date of the election, signed by the chief inspector and one of the inspectors representing each of the 2 major political parties and returned to the municipal clerk in the same manner as official ballots voted at the election.

AB904, s. 20 Section 20. 7.08 (3) (intro.) of the statutes is amended to read: