AB895: Bill Text

LRB-4531/1

JTK&ARG:cjs/kjf/bjk/nwn:rs

2009 - 2010 LEGISLATURE

2009 Assembly BILL 895

March 24, 2010 - Introduced by Representatives Smith, Parisi, Young, Kessler, Roys, Soletski, A. Williams, Sheridan, Nelson, Pocan, Hilgenberg, Berceau, Hubler, Dexter, Bernard Schaber, Vruwink, Pasch, Black, Milroy, Grigsby and Pope-Roberts, cosponsored by Senators Coggs, Hansen, Wirch, Kreitlow, Holperin and Taylor. Referred to Committee on Elections and Campaign Reform.

AB895,2,10 An Act to repeal 6.86 (2), 6.865 (3) and 6.865 (3m) (c); to renumber 5.07; to renumber and amend 6.86 (2m), 7.52 (5), 7.52 (6) (a) and 7.52 (6) (b); to consolidate, renumber and amend 6.25 (4) (intro.), (a) and (b); to amend 5.05 (1) (e), 5.05 (1) (f), 5.05 (13) (title), 5.056, 5.06 (2), 5.25 (4) (b), 5.35 (6) (a) (intro.), 5.35 (6) (a) 5., 5.35 (6) (b), 5.35 (6) (c), 5.84 (1), 6.22 (4) (a), 6.22 (4) (e), 6.22 (6), 6.221 (1), 6.221 (3) (b), 6.24 (4) (c), 6.25 (1), 6.275 (1) (c), 6.275 (1) (d), 6.28 (1), 6.28 (4), 6.29 (1), 6.29 (2) (a), 6.29 (2) (b), 6.29 (2) (d), 6.33 (5) (a), 6.34 (2), 6.34 (3) (a) 7., 6.34 (3) (b) (intro.), 6.36 (1) (a), 6.36 (1) (b) 1. a., 6.36 (2) (a), 6.36 (2) (c), 6.54, 6.55 (title), 6.55 (2) (a) 1., 6.55 (2) (b), 6.55 (2) (c) 1. and 2., 6.55 (2) (cs), 6.55 (5), 6.79 (4), 6.855 (title), 6.855 (1), 6.855 (2), 6.86 (1) (a) (intro.), 6.86 (1) (a) 3., 6.86 (1) (ac), 6.86 (1) (b), 6.86 (1) (b), 6.86 (1) (c), 6.86 (3) (a), 6.86 (3) (c), 6.865 (title), 6.865 (3m) (a), 6.865 (3m) (b), 6.869, 6.87 (2) (intro.), 6.87 (3) (d), 6.87 (4), 6.87 (9), 6.875 (3), 6.875 (4) (a), 6.875 (6) (c) 1., 6.88 (3) (b), 6.88 (3) (c), 6.925, 6.93, 7.08 (1) (c), 7.15 (1) (cm), 7.15 (1) (j), 7.15 (2m), 7.15 (4), 7.41 (4), 7.51 (3) (d), 7.52 (3) (b), 7.52 (4) (i), 9.01 (1) (b) 2., 10.01 (2) (e), 12.09 (1) and (3), 12.13 (1) (b), 12.13 (1) (c), 12.13 (1) (d), 12.13 (2) (b) 3., 12.60 (1) (a), 12.60 (4), 85.61 (1), 939.50 (3) (d) and 939.50 (3) (e); to repeal and recreate 6.86 (1) (a) 3.; and to create 5.05 (13) (c) and (d), 5.05 (16), 5.07 (2), 5.25 (4) (c), 5.34, 5.35 (6) (a) 4c., 5.35 (6) (d), 6.22 (2) (e), 6.24 (4) (e), 6.256, 6.29 (2) (e), 6.34 (2n), 6.34 (3) (d), 6.34 (4), 6.36 (1) (bm), 6.86 (1) (ab), 6.86 (1) (ad), 6.86 (3) (d), 6.868, 6.87 (2m), 7.08 (3) (d) to (g), 7.08 (12), 7.08 (13), 7.10 (11), 7.15 (15), 12.17, 12.19, 12.60 (1) (am), 12.60 (1) (an), 12.60 (1) (ap), 12.60 (1) (bn) and 19.685 of the statutes; relating to: various changes in election laws, granting rule-making authority, and providing penalties.

Analysis by the Legislative Reference Bureau

This bill makes various changes in laws relating to elections and voting. Significant provisions include:

Voter registration

Currently, with the exception of individuals who are defined as "military electors" under state law and new or former residents voting for president and vice president, all eligible electors of this state must register in order to vote in an election in this state. The registration period for each election ends on the 20th day before that election, but an eligible elector may register to vote in an election after that date at the office of the municipal clerk or board of election commissioners of the municipality where he or she resides or at the polling place serving his or her residence by providing specified proof of residence. In order to register, an individual must provide his or her name, residence location, citizenship, date of birth, age, and the number of a valid Wisconsin driver's license or the last four digits of his or her social security number. An individual must also affirm that he or she: 1) has resided in his or her ward (or municipality if not divided into wards) for at least ten days; 2) has not been convicted of a felony for which he or she has not been pardoned and has not completed his or her sentence; 3) is not disqualified on any other ground from voting; and 4) is not registered to vote at any other location. The burden is on the elector to initiate registration and, if the elector's name, address, or eligibility changes, to initiate any change in registration required to maintain a valid registration.

This bill makes it the responsibility of the Government Accountability Board (GAB) to use all feasible means to facilitate the registration of all eligible electors of this state who are subject to a registration requirement and the maintenance of the registration of all eligible electors for so long as they remain eligible, except as the law specifically requires electors to take some action to confirm or continue their registrations. Under the bill, GAB must attempt to facilitate the initial registration of all eligible electors in accordance with the bill's requirements and procedures no later than July 1, 2015. To assist with its responsibility, the bill directs GAB and the Department of Transportation to enter into an agreement for the purpose of transferring specified personally identifiable information in DOT's records to GAB. The bill requires GAB to maintain the confidentiality of any information that GAB obtains under the agreement. Under the bill, once GAB obtains all the information required under current law to complete an elector's registration, GAB adds the elector's name to the statewide registration list. GAB does not notify the elector of the addition, but the information is accessible on the Internet. No registration of an elector that is added to the list by GAB is valid until the elector confirms with GAB, on a form prescribed by GAB, that all the information pertaining to his or her registration is correct and accurate as of the date of the confirmation. The bill permits an elector to confirm a registration by any of the following means: 1) by electronic means on the Internet using a secure procedure prescribed by GAB; 2) by mail; or 3) by appearing in person at the office of the municipal clerk or board of election commissioners where the elector resides or at the polling place serving the elector's residence. The bill also permits an individual whose name is added to the registration list by GAB to file a request to have his or her name deleted from the list or to revoke a deletion request previously made. A deletion or revocation of a deletion request may be made in the same manner that a registration may be confirmed. In addition, the bill directs GAB to notify an individual by first class postcard whenever GAB removes his or her name from the registration list or changes his or her status on the list from eligible to ineligible, other than by request of the elector, except when GAB removes a duplicate entry from the list or changes the name of a deceased person from eligible to ineligible status.

Currently, if an elector is eligible to vote and is not registered to vote, the elector may register to vote and vote at the polling place serving his or her residence on election day by providing proof of residence or by having another elector of the municipality where the polling place is located corroborate his or her registration information. This bill permits an elector whose registration has been entered on the registration list by GAB to confirm his or her registration and vote on election day at the same polling place in the same manner as currently provided for original registration.

Currently, with certain exceptions, if an elector registers to vote by mail and has not voted in an election in this state, the elector must provide proof of residence prior to voting. This bill extends this requirement to apply to an elector whose registration is initiated by GAB but who has not confirmed his or her registration and has not voted in an election in this state. The bill also provides that if such an elector provides his or her Wisconsin driver's license number or his or her social security number, together with his or her name and date of birth, and GAB is able to instantly verify the information electronically by electronically accessing records of DOT, the elector need not provide proof of residence before voting.

Currently, in order to register to vote, an elector must provide his or her date of birth. This information becomes a part of the statewide voter registration list. Information on the registration list concerning the date of birth of an elector is not open to public inspection. This bill limits this restriction only to information concerning the birthday of an elector, thus permitting public access to information concerning an elector's year of birth.

The bill directs GAB to report to the appropriate standing committees of the legislature, no later than July 1, 2011, concerning its progress in initially implementing the registration system created by the bill. The report must contain an assessment of the feasibility and desirability or integration of registration information with information maintained by the departments of health services, children and families, workforce development, revenue, regulation and licensing, and natural resources and the University of Wisconsin System.

The bill also permits GAB to enter into an agreement with any state agency to enable matching of publicly available information in the records of the agency with records of the board to facilitate administration of voter registration by GAB.

Currently, information on the statewide voter registration list relating to the date of birth, operator's license number, or social security number of an elector, the confidential address of an elector who is subject to domestic abuse, sexual assault, or stalking, or an accommodation required to assist a disabled elector is open to inspection only by election officials and administrators. This bill permits GAB to transfer any of this information to another state agency or authority or to a subunit of the state government of another state except information obtained from DOT. The bill also prohibits a state agency or authority or officer or employee thereof from providing access to any transferred information to a third party. Violators are subject to a forfeiture (civil penalty) of not more than $500 for each violation.

Currently, municipal clerks and boards of election commissioners must update changes in the voter registration list received on election day no later than 30 days after the date of the election. This bill permits these changes to be updated within 45 days after a general (November) election, and further permits the legal counsel of GAB to permit a municipal clerk or board of election commissioners, upon application, to update the registration list with changes received on the date of the general election within 60 days after the date of the election.

Absentee voting

This bill makes various changes in the laws pertaining to absentee voting. Most of the changes relate to absentee voting by military and overseas electors of this state. State law contains different definitions of the terms "military elector" and "overseas elector." One set of definitions mirrors the definitions found in federal law. Under federal law, a "military elector" includes 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; 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; and 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 person is otherwise qualified to vote. The federal definition of "overseas elector" includes an elector who resides outside the United States and who is qualified under federal law to vote in elections for national office in this state because the elector last resided in this state immediately prior to the elector's departure from the United States. The other set of definitions applies for certain state purposes and includes all the persons who are included in the federal definitions but also includes other persons. The state definition of the term "military elector" includes 1) members of a uniformed service who are not on active duty or who are not absent from their residences by reason of their service or both; 2) members of the merchant marine who are not absent from their residences; 3) civilian employees of the United States and civilians officially attached to a uniformed service who are serving outside the United States; 4) Peace Corps volunteers; and 5) spouses and dependents of these persons who are residing with or accompanying them. The state definition of "overseas elector" includes children of persons who qualify as overseas electors under federal law who are U.S. citizens at least 18 years of age, who are not disqualified from voting in this state, and who are not residents of this state. Significant provisions relating to absentee voting include:

1. Currently, an individual who is a qualified elector of a municipality, other than a "military elector" or an "overseas elector" as defined by state law, may file an application with the municipal clerk or board of election commissioners of the municipality where the individual resides requiring the clerk or board to send an absentee ballot to the individual without further request for every succeeding election held in the same calendar year in which the request is made, or until the individual is no longer a qualified elector of the municipality or the individual otherwise requests. Currently, an elector who is indefinitely confined may file a single request to receive absentee ballots automatically for each election. If a confined elector fails to cast an absentee ballot, the municipal clerk or board of election commissioners notifies the elector that he or she will not receive absentee ballots for subsequent elections unless the elector reapplies to receive ballots within 30 days of receiving the notice. Currently, an overseas elector, as defined by state law, who requests an absentee ballot is sent an absentee ballot for all federal elections that occur in the same calendar year as the year in which the request is made, unless the elector otherwise requests. Current law directs municipal clerks and boards of election commissioners to send military electors, as defined by state law, absentee ballots for every election if they request a ballot for one election and to verify their military status without the necessity of making additional application. The clerk or board must discontinue sending absentee ballots to a military elector if the elector so requests, the elector no longer qualifies as a military elector of the municipality, or the elector fails to return at least one of the ballots sent to the elector within a period that encompasses three successive general elections.

This bill directs a municipal clerk or board of election commissioners to send an absentee ballot to an individual who is a qualified elector of the municipality, other than a military elector or an overseas elector, as defined by state law, and who files a valid application to receive an absentee ballot for every election following receipt of the application until the individual no longer qualifies to receive a ballot, the individual requests not to receive ballots, or the individual fails to return an absentee ballot that is mailed to the individual. Under the bill, a municipal clerk or board of election commissioners must attempt to notify any individual whose name is removed from the list of electors who automatically receive absentee ballots unless the individual requests that his or her name be removed. The individual may then request to continue to receive absentee ballots if he or she is qualified to do so. These changes do not affect the current procedure for sending absentee ballots to military and overseas electors, as defined by state law.

2. Currently, all electors who cast an absentee ballot, whether by mail or in person at the office of the municipal clerk or board of election commissioners, must sign a certificate that is printed on the envelope into which they deposit their ballots. The certificate certifies, subject to criminal penalties, that the elector meets specific voting qualifications and personally voted the ballot secretly unless the elector required assistance. The certificate must be witnessed by one adult U.S. citizen who also signs the certificate and certifies subject to the same penalties that the elector's statements are true, the ballot was voted as stated, and the witness did not solicit or advise the elector in casting his or her votes. This bill provides that for an elector voting an absentee ballot in person at the office of the municipal clerk or board of election commissioners or an alternate site designated by a municipality, GAB may prescribe an envelope to be used in place of the statutory certificate envelope. No certification and no witness is required on such envelopes. The bill requires GAB's envelope to include the elector's name, residence, and ward and aldermanic district, if any.

3. Currently, the governing body of a municipality may designate a single alternate site for absentee voting in person by electors of the municipality. If designated, this site serves in lieu of the office of the municipal clerk or board of election commissioners as the site where absentee voting is conducted for the election at which the designation is made.

This bill permits the governing body of a municipality to designate more than one alternate site for absentee voting in person by electors of the municipality. Under the bill, an alternate site may be used for absentee voting in addition to or in lieu of use of the office of the municipal clerk or board of election commissioners. The bill also directs a municipality that designates an alternate site for absentee voting at an election to notify GAB in writing of its designation.

4. Currently, an elector who wishes to cast an absentee ballot must file a written, signed application, but the form of the application is not specified. This bill provides that an elector who wishes to cast an absentee ballot in person at the office of the municipal clerk or board of election commissioners or at an alternate site must apply on a form prescribed by GAB.

5. Currently, the municipal clerk or board of election commissioners of a municipality must begin distributing absentee ballots to electors who have requested them no later than the 30th day before each September primary and general election and no later than the 21st day before each other primary or election. This bill retains this requirement but provides that the period for absentee voting in person at the office of the clerk or board or an alternate site begins on the 21st day before each election and ends on the day before each election.

6. Currently, an elector who requests an absentee ballot in person or by mail must make written application and must sign the application. However, if an elector requests an absentee ballot by electronic mail or facsimile transmission, the elector need not file a written application but must enclose with his or her returned ballot a copy of a request for an absentee ballot together with his or her original signature. This bill deletes the requirement for electors who apply for an absentee ballot by electronic mail or facsimile transmission to provide a request and original signature when returning their ballots.

7. Under current law, any qualified absentee elector may request an absentee ballot by means of electronic mail or facsimile transmission. If an elector so requests, the elector must mail with his or her voted absentee ballot a copy of an absentee ballot application containing his or her original signature. In addition, an absentee elector may request that his or her absentee ballot be transmitted to him or her by electronic mail or facsimile transmission and a municipal clerk or board of election commissioners may transmit the ballot as requested. This bill provides that the municipal clerk or board of election commissioners must transmit the ballot if the clerk or board receives a valid request.

8. Current law permits a military or overseas elector, as defined in state law, to cast a vote in any general election in which a federal office is to be filled by writing in the name of a candidate on a blank absentee ballot form prescribed by the U.S. government and returning the ballot to the appropriate municipal clerk or board of election commissioners. This bill permits such a ballot to be cast at any election, including any primary election, at which a federal office is to be filled.

9. This bill directs GAB, with the assistance of county and municipal clerks and boards of election commissioners, to designate at least one freely accessible means of electronic communication which shall be used to: 1) permit a military or overseas elector, as defined by federal law, to request a voter registration or absentee ballot application and to indicate whether he or she wishes to receive the application electronically or by mail; and 2) permit a municipal clerk or board of election commissioners to transmit an application to a military or overseas elector, as defined by federal law, electronically or by mail, as requested by the elector, together with related voting, balloting and election information. The bill also directs GAB, with the assistance of county and municipal clerks and boards of elections commissioners, to maintain a freely accessible system whereby a military or overseas elector who casts an absentee ballot may ascertain whether the ballot has been received by the appropriate municipal clerk or board. No similar provisions exist currently.

10. Under current federal law, states are required to transmit absentee ballots to military and overseas electors no later than 45 days before each federal election at which the electors are entitled to vote, if the electors have requested their ballots by that time. However, a state may request a hardship waiver from the federal government, for a single election only, if the state's primary election date does not permit compliance with this requirement and the state takes other actions to ensure expeditious delivery of absentee ballots to military and overseas electors. This bill directs the legal counsel to GAB to request a hardship waiver on behalf of this state for the 2010 September primary and general election and, if the waiver is not granted, report that fact to the appropriate standing committees of the legislature. In addition, the bill directs GAB to report to the same committees no later than January 1, 2011, concerning the timeline used by this state for the absentee voting process and the feasibility of making adjustments to enable compliance with the timeline prescribed by federal law.

11. Currently, an absentee ballot cast by an elector is void unless it is received at the polling place for the elector's residence by 8 p.m. on election night. However, state law provides that if an elector is a military elector, as defined by federal law, the elector has an additional ten days after the general election and 7 days after the September primary for the elector's ballot to be received by his or her municipality if the ballot is postmarked by election day. This bill extends a similar ten-day dispensation to military electors voting in the presidential preference primary or a special federal election.

12. Currently, an elector who is a military elector, as defined by state law, or an overseas elector, as defined by state law, and who applies for an absentee ballot no later than 30 days before an election may cast a blank write-in ballot at that election in lieu of the official printed ballot, for any candidates for federal office whose offices are contested at that election. The ballot is valid only if it is submitted from a location outside the United States. This bill permits such an elector to cast a blank write-in absentee ballot after official printed ballots become available if he or she applies for an absentee ballot no later than the latest time permitted for application for an absentee ballot under state law. The bill also permits a military elector to cast such a ballot even if the ballot is submitted from a location inside the United States, including the elector's permanent residence.

13. Currently, GAB must prescribe uniform instructions for absentee voters. This bill provides that the instructions must include the specific means of electronic communication that absentee voters may use to file an application for an absentee ballot, to request a voter registration form, or to change their registrations.

14. Currently, when an elector registers to vote in person at the office of the municipal clerk or board of election commissioners after the close of registration for an election, the clerk or board issues a registration certificate to the elector. This bill provides that the clerk or board shall issue a registration certificate only if the elector does not wish to cast an absentee ballot when registering.

15. Currently, an individual may grant the power of attorney to another individual to act on his or her behalf under certain conditions specified by the grantor. This bill specifically permits an individual who has been granted the power of attorney to act on behalf of another individual and who has authority to act on the grantor's behalf to apply for an absentee ballot on behalf of the grantor if the grantor is unable to sign an application. The bill also permits such an individual to apply for an absentee ballot on behalf of a hospitalized elector and, if the elector is not registered, to sign the elector's voter registration form on his or her behalf. In addition, the bill provides that an individual who has been granted a power of attorney to act as the agent of an elector is not permitted to cast a ballot on behalf of the elector, but if the elector has difficulty reading, writing, or understanding English or due to disability is unable to mark a ballot, the elector may request assistance in marking his or her ballot from the agent or, with certain exceptions, from another individual.

16. Current law permits a qualified elector to apply for an absentee ballot by mail, facsimile transmission, or electronic mail. The law also specifies deadlines for receipt of applications by mail. This bill provides that the deadlines for receipt of applications by facsimile transmission or electronic mail are the same as those for receipt of applications by mail.

Deceptive election practices

Currently, the statutes provide that no person may knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum that is intended to affect voting at an election. Violators may be fined not more than $1,000 or imprisoned for not more than six months, or both.

This bill prohibits any person, whether acting in an official capacity or otherwise, from intentionally deceiving any other person regarding the date, time, place, or manner of conducting an election; the qualifications for voting or restrictions on the eligibility of electors to vote in an election; or the endorsement of candidates by specified persons. Any person who violates the prohibition with intent to prevent any person from exercising the right to vote in an election may be fined not more than $100,000 or imprisoned for not more than five years, or both.

The bill permits any person who is aggrieved by an alleged violation to obtain a court order restraining the violation. The bill also permits any person to file a sworn complaint with GAB alleging that a violation has occurred or is occurring. If GAB finds that the facts alleged in the complaint, if true, would constitute a violation, it must promptly investigate the complaint. If GAB finds that a violation has occurred or is occurring, GAB must take all measures necessary to provide correct information to electors who may have been deceived by the actions of the alleged violator and must refer the matter to the appropriate authority for prosecution.

The bill also directs GAB to promulgate rules concerning corrective measures that may be appropriate whenever violations occur. In addition, the bill directs GAB to report biennially to the appropriate standing committees of the legislature with regard to violations and actions taken in response to violations.

Voter intimidation, suppression, and protection

Currently, no person may make use of or threaten to make use of force, violence, or restraint in order to compel any person to vote or refrain from voting at an election, and no person may, by any act compel, induce, or prevail upon an elector to either vote or refrain from voting at any election for or against a particular candidate or question. Violators may be fined not more than $10,000 or imprisoned for not more than three years and six months, or both.

This bill provides that no person may make use of or threaten to make use of force, violence, restraint, or any tactic of coercion or intimidation in order to induce or compel any person to vote or refrain from voting or to refrain from registering to vote at an election, and no person may use or threaten to use force or violence or by use of any threat of any act of coercion or intimidation compel, induce, or prevail upon an elector either to vote or refrain from voting at any election for or against a candidate or question. Violators may be fined not more than $100,000 or imprisoned for not more than three years, or both.

The bill also provides that no person may knowingly attempt to prevent or deter another person from voting or registering to vote based upon fraudulent, deceptive, or spurious grounds or information. Violators may be fined not more than $50,000 or imprisoned for not more than two years, or both.

Currently, municipal clerks and boards of election commissioners are directed by law to post specified materials at each polling place. GAB is directed to publish a manual that may be easily understood by the general public explaining the duties of election officials. Currently, GAB is also directed to ensure that in any jurisdiction in this state that is required under federal law to provide voting materials in a language other than English, the voting system used in that jurisdiction is in compliance with federal law. There is no specific penalty for violations, but the requirements are enforceable administratively and through the court system.

This bill creates a voter's bill of rights and directs municipal clerks and boards of election commissioners to post a copy of the bill of rights at each polling place unless otherwise permitted by GAB. The bill directs GAB to include a number of specific items in its manual. The bill also requires that at each polling place located in a jurisdiction that is required under federal law to provide voting materials in a language other than English, all required postings must be made in that language as well as in English unless otherwise permitted by GAB. See Polling place posting requirements, below. In addition, the bill directs the municipal clerk or board of election commissioners of any such jurisdiction to contact and coordinate with organizations that advocate for the rights of individuals who speak that language to ensure that each polling place in the jurisdiction adequately serves the needs of these individuals, and to endeavor to ensure that at least one of the election officials who serves at each polling place in the jurisdiction speaks that language. Violators are subject to a forfeiture (civil penalty) of not more than $500 for each violation.

The bill also permits any elector of this state to sue for injunctive relief, a court order requiring or prohibiting certain action, or any other appropriate relief, to compel compliance with the bill's prohibitions and requirements relating to voter intimidation, suppression, and protection. Currently, an elector may be required to pursue administrative relief before filing suit, and in some cases must petition a district attorney or the attorney general to file suit on his or her behalf.