(5t) Guidance following binding court decisions.
Within 2 months following the publication of a decision of a state or federal court that is binding on the commission and this state, the commission shall issue updated guidance or formal advisory opinions, commence the rule-making procedure to revise administrative rules promulgated by the commission, or request an opinion from the attorney general on the applicability of the court decision.
Any individual, either personally or on behalf of an organization or governmental body, may make a request of the commission in writing, electronically, or by telephone for a formal or informal advisory opinion regarding the propriety under chs. 5
of any matter to which the person is or may become a party. Any appointing officer, with the consent of a prospective appointee, may request of the commission a formal or informal advisory opinion regarding the propriety under chs. 5
of any matter to which the prospective appointee is or may become a party. The commission shall review a request for an advisory opinion and may issue a formal or informal written or electronic advisory opinion to the person making the request. Except as authorized or required for opinions specified in sub. (5s) (f)
, the commission's deliberations and actions upon such requests shall be in meetings not open to the public. A member of the commission may, by written request, require the commission to review an advisory opinion.
To have legal force and effect, each formal and informal advisory opinion issued by the commission must be supported by specific legal authority under a statute or other law, or by specific case or common law authority. Each formal and informal advisory opinion shall include a citation to each statute or other law and each case or common law authority upon which the opinion is based, and shall specifically articulate or explain which parts of the cited authority are relevant to the commission's conclusion and why they are relevant.
No person acting in good faith upon a formal or informal advisory opinion issued by the commission under this subsection is subject to criminal or civil prosecution for so acting, if the material facts are as stated in the opinion request.
At each regular meeting of the commission, the administrator shall review informal advisory opinions requested of and issued by the administrator and that relate to recurring issues or issues of first impression for which no formal advisory opinion has been issued. The commission may determine to issue a formal advisory opinion adopting or modifying the informal advisory opinion. If the commission disagrees with a formal or informal advisory opinion that has been issued by or on behalf of the commission, the commission may withdraw the opinion, issue a revised formal or informal advisory opinion, or request an opinion from the attorney general. No person acting after the date of the withdrawal or issuance of the revised advisory opinion is exempted from prosecution under this subsection if the opinion upon which the person's action is based has been withdrawn or revised in relevant degree.
Except as authorized or required under sub. (5s) (f)
, no member or employee of the commission may make public the identity of the individual requesting a formal or informal advisory opinion or of individuals or organizations mentioned in the opinion.
The commission may authorize the commission administrator or his or her designee to issue an informal written advisory opinion or transmit an informal advisory opinion electronically on behalf of the commission, subject to such limitations as the commission deems appropriate. Every informal advisory opinion shall be consistent with applicable formal advisory opinions issued by the commission, statute or other law, and case law.
Any individual may request in writing, electronically, or by telephone an informal advisory opinion from the commission under this paragraph. The commission's designee shall provide a written response, a written reference to an applicable statute or law, or a written reference to a formal advisory opinion of the commission to the individual, or shall refer the request to the commission for review and the issuance of a formal advisory opinion.
Any person receiving an informal advisory opinion under this paragraph may, at any time, request a formal advisory opinion from the commission on the same matter.
Any individual may request in writing, electronically, or by telephone a formal advisory opinion from the commission or the review or modification of a formal advisory opinion issued by the commission under this paragraph. The individual making the request shall include all pertinent facts relevant to the matter. The commission shall review a request for a formal advisory opinion and may issue a formal advisory opinion to the individual making the request. Except as authorized or required for opinions specified in sub. (5s) (f)
, the commission's deliberations and actions upon such requests shall be in meetings not open to the public.
Any person requesting a formal advisory opinion under this paragraph may request a public or private hearing before the commission to discuss the opinion. The commission shall grant a request for a public or private hearing under this paragraph.
Promptly upon issuance of each formal advisory opinion, the commission shall publish the opinion together with the information specified under sub. (5s) (f)
on the commission's Internet site.
If the commission declines to issue a formal advisory opinion, it may refer the matter to the attorney general or to the standing legislative oversight committees.
(7) Administrative meetings and conferences.
The commission shall conduct regular information and training meetings at various locations in the state for county and municipal clerks and other election officials. Administrative meetings shall be designed to explain the election laws and the forms and rules of the commission, to promote uniform procedures and to assure that clerks and other officials are made aware of the integrity and importance of the vote of each citizen. The commission may conduct conferences relating to election laws, practice and procedure. The commission may charge persons attending the administrative meetings and conferences for its costs incurred in conducting the meetings and conferences at a rate not exceeding the per capita cost incurred by the commission.
The commission has standing to commence or intervene in any civil action or proceeding for the purpose of enforcing the laws regulating the conduct of elections or election campaigns, other than laws regulating campaign financing, or ensuring their proper administration.
(10) State election administration plan.
With the approval of the joint committee on finance as provided in this subsection, the commission shall adopt and modify as necessary a state plan that meets the requirements of P.L. 107-252
to enable participation by this state in federal financial assistance programs authorized under that law. The commission shall adopt the plan and any modifications only after publishing a class 1 notice under ch. 985
or posting on the Internet a statement describing the proposed plan or modification and receiving public comment thereon. After approval of the proposed plan or any modification of the plan by the commission, the commission shall submit the proposed plan or modification to the joint committee on finance for the approval of the committee. The commission may adopt the proposed plan or modification only if the committee approves the proposed plan or modification.
(11) Aids to counties and municipalities.
From the appropriations under s. 20.510 (1) (t)
, the commission may provide financial assistance to eligible counties and municipalities for election administration costs in accordance with the plan adopted under sub. (10)
. As a condition precedent to receipt of assistance under this subsection, the commission shall enter into an agreement with the county or municipality receiving the assistance specifying the intended use of the assistance and shall ensure compliance with the terms of the agreement. Each agreement shall provide that if the federal government objects to the use of any assistance moneys provided to the county or municipality under the agreement, the county or municipality shall repay the amount of the assistance provided to the commission.
(12) Voter education.
The commission may conduct or prescribe requirements for educational programs to inform electors about voting procedures, voting rights, and voting technology. The commission shall conduct an educational program for the purpose of educating electors who cast paper ballots, ballots that are counted at a central counting location, and absentee ballots of the effect of casting excess votes for a single office.
(13) Toll-free election information and requests. 5.05(13)(a)(a)
The commission shall maintain one or more toll-free telephone lines for electors to report possible voting fraud and voting rights violations, to obtain general election information, and to access information concerning their registration status, current polling place locations, and other information relevant to voting in elections.
The commission may maintain a free access system under which an elector who votes under s. 6.96
may ascertain current information concerning whether the elector's vote has been counted, and, if the vote will not be counted, the reason that it will not be counted.
The commission shall maintain a freely accessible system under which a military elector, as defined in s. 6.34 (1) (a)
, or an overseas elector, as defined in s. 6.34 (1) (b)
, who casts an absentee ballot may ascertain whether the ballot has been received by the appropriate municipal clerk.
The commission shall designate and maintain at least one freely accessible means of electronic communication which shall be used for the following purposes:
To permit a military elector, as defined in s. 6.34 (1) (a)
, or an overseas elector, as defined in s. 6.34 (1) (b)
, to request a voter registration application or an application for an absentee ballot at any election at which the elector is qualified to vote in this state.
To permit a military elector or an overseas elector under subd. 1.
to designate whether the elector wishes to receive the applications under subd. 1.
electronically or by mail.
To permit a municipal clerk to transmit to a military elector or an overseas elector under subd. 1.
a registration application or absentee ballot application electronically or by mail, as directed by the elector under subd. 2.
, together with related voting, balloting, and election information.
(14) Information from county and municipal clerks. 5.05(14)(a)(a)
The commission may request information from county and municipal clerks relating to election administration, performance of electronic voting systems and voting machines, and use of paper ballots in elections.
The commission shall establish a subscription service whereby a person may electronically access the absentee ballot information provided under s. 6.33 (5) (a)
, including semiweekly updates of such information.
On election night the commission shall provide a link on its Internet site to the posting of each county's election returns on each county's Internet site.
(15) Registration list.
The commission is responsible for the design and maintenance of the official registration list under s. 6.36
. The commission shall require all municipalities to use the list in every election and may require any municipality to adhere to procedures established by the commission for proper maintenance of the list.
Annually, the commission shall adopt written policies and procedures in order to govern its internal operations and management and shall annually report such policies and procedures to the appropriate standing committees of the legislature under s. 13.172 (3)
Notwithstanding par. (a)
, the commission may reconsider at any time any policy or procedure adopted as provided under par. (a)
. If, upon reconsideration, the commission revises a previously reported policy or procedure, the commission shall report the revision to the appropriate standing committees of the legislature under s. 13.172 (3)
The commission may reconsider at any time any written directives or written guidance provided to the general public or to any person subject to the provisions of chs. 5
with regard to the enforcement and administration of those provisions.
The commission may accept payment by credit card, debit card, or other electronic payment mechanism for any amounts owed pursuant to the administration of chs. 5
, and may charge a surcharge to the payer to recover charges associated with the acceptance of that electronic payment.
(18) Electronic poll lists.
The commission may facilitate the creation and maintenance of electronic poll lists for purposes of s. 6.79
including entering into contracts with vendors and establishing programs for development and testing.
History: 1973 c. 334
; 1975 c. 85
; 1977 c. 29
; 1977 c. 196
; 1977 c. 418
; 1979 c. 32
s. 92 (8)
; 1979 c. 89
; 1983 a. 27
; 1985 a. 303
; 1985 a. 304
; 1989 a. 31
; 1999 a. 182
; 2001 a. 109
; 2003 a. 35
; 2005 a. 177
; 2007 a. 1
; 2007 a. 20
; 2009 a. 28
; 2011 a. 75
; 2013 a. 20
; 2015 a. 2
; 2015 a. 118
, 266 (10)
; 2015 a. 261
; s. 13.92 (1) (e); s. 35.17 correction in (1) (intro.).
See also EL
, Wis. adm. code.
Notice to the district attorney, attorney general, or governor is not a prerequisite to a civil forfeiture under sub. (1) (c). State Elections Board v. Hales, 149 Wis. 2d 306
, 440 N.W.2d 579
(Ct. App. 1989).
A party being investigated by the board is not entitled under sub. (1) (b) to attend and participate in all depositions conducted by the board. Notice to the party being investigated under sub. (1) (b) is limited to the board's exercise of its subpoena power and does not relate in any way to the conduct of depositions the board may wish to take. State ex rel. Block v. Circuit Court for Dane County, 2000 WI App 72
, 234 Wis. 2d 183
, 610 N.W.2d 213
Unless otherwise stated in a specific statute, criminal and civil forfeiture provisions of the election, lobby, and ethics laws can be enforced by a district attorney independently of the board. A referral following an investigation by the board is not required. A district attorney may request prosecutorial or investigative assistance from the attorney general in connection with any duty of the district attorney under those laws. If there has been a referral to the district attorney by the board under sub. (2m) (c) 11., 14., or 15., the district attorney must retain ultimate supervisory authority over the matter referred unless a special prosecutor has been appointed in lieu of the district attorney. OAG 10-08
The board and district attorneys possess joint and co-equal authority to investigate possible violations of the election, lobby, or ethics laws and to prosecute civil forfeiture actions under those laws. Unless otherwise stated in a specific statutory provision, the district attorney possesses the authority to prosecute criminal proceedings under those laws. The board has no statutory authority to prosecute criminal proceedings under those laws except as stated in sub. (2m) (i). OAG 10-08
For the attorney general to prosecute violations of the election, lobby, and ethics laws there must be a specific statute authorizing the attorney general to independently initiate the prosecution of civil and criminal actions involving violations of those laws unless there is a referral to the attorney general by the board under sub. (2m) (c) 16. or unless the attorney general or an assistant attorney general has been appointed as special prosecutor to serve in lieu of the district attorney. OAG 10-08
Election assistance commission standards board.
The commission administrator shall, in consultation with the commission, appoint an individual to represent this state as a member of the federal election assistance commission standards board. The administrator shall also conduct and supervise a process for the selection of an election official by county and municipal clerks and boards of election commissioners to represent local election officials of this state as a member of the federal election assistance commission standards board. The administrator shall ensure that the members of the federal election assistance commission standards board representing this state shall at no time be members of the same political party. Upon appointment or election of any new member of the federal election assistance commission standards board representing this state, the administrator shall transmit a notice of that member's appointment or election to the officer or agency designated by federal law.
Matching program with secretary of transportation.
The commission administrator shall enter into the agreement with the secretary of transportation specified under s. 85.61 (1)
to match personally identifiable information on the official registration list maintained by the commission under s. 6.36 (1)
and the information specified in s. 6.34 (2m)
with personally identifiable information maintained by the department of transportation.
Compliance review; appeal. 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 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 commission requesting that the official be required to conform his or her conduct to the law, be restrained from taking any action inconsistent with the law or be required to correct any action or decision inconsistent with the law 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 law or abuse of discretion has occurred or will occur. The complaint may be accompanied by relevant supporting documents. The commission 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.
No person who is authorized to file a complaint under sub. (1)
, other than the attorney general or a district attorney, may commence an action or proceeding to test the validity of any decision, action or failure to act on the part of any election official with respect to any matter specified in sub. (1)
without first filing a complaint under sub. (1)
, nor prior to disposition of the complaint by the commission. A complaint is deemed disposed of if the commission fails to transmit an acknowledgment of receipt of the complaint within 5 business days from the date of its receipt or if the commission concludes its investigation without a formal decision.
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.
The commission 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 abused the discretion vested in him or her by law or proposes to do so.
Upon receipt of a complaint under sub. (1)
, or upon its own motion, the commission may order any election official to immediately transfer to its possession any original documents in the custody of the official which the commission finds to be necessary and relevant to permit review of compliance with the laws concerning nominations, qualifications of candidates, ward division and numbering, recall or ballot preparation or the proper administration of such laws.
The commission 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, restrain an official from taking any action inconsistent with the law or require an official to correct any action or decision inconsistent with the law. The commission 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.
The commission may withdraw, modify or correct an order issued under sub. (6)
within a timely period if it finds such action to be appropriate.
Any election official or complainant who is aggrieved by an order issued under sub. (6)
may appeal the decision of the commission to circuit court for the county where the official conducts business or the complainant resides no later than 30 days after issuance of the order. Pendency of an appeal does not stay the effect of an order unless the court so orders.
The court may not conduct a de novo proceeding with respect to any findings of fact or factual matters upon which the commission has made a determination, or could have made a determination if the parties had properly presented the disputed matters to the commission for its consideration. The court shall summarily hear and determine all contested issues of law and shall affirm, reverse or modify the determination of the commission, according due weight to the experience, technical competence and specialized knowledge of the commission, pursuant to the applicable standards for review of agency decisions under s. 227.57
This section does not apply to matters arising in connection with a recount under s. 9.01
The plaintiff's failure to comply with the method of review prescribed by this section deprived the circuit court of jurisdiction to hear the plaintiff's original action regarding election irregularities. Kuechmann v. LaCrosse School District, 170 Wis. 2d 218
, 487 N.W.2d 639
(Ct. App. 1992).
Compliance with federal Help America Vote Act. 5.061(1)(1)
Whenever any person believes that a violation of Title III of P.L. 107-252
has occurred, is occurring, or is proposed to occur with respect to an election for national office in this state, that person may file a written, verified complaint with the commission.
If the commission receives more than one complaint under sub. (1)
relating to the same subject matter, the commission may consolidate the complaints for purposes of this section.
A complainant under sub. (1)
or any of the complainants in a consolidated complaint under sub. (2)
may request a hearing and the matter shall then be treated as a contested case under ch. 227
, except that the commission shall make a final determination with respect to the merits of the complaint and issue a decision within 89 days of the time that the complaint or the earliest of any complaints was filed, unless the complainant, or each of any complainants whose complaints are consolidated, consents to a specified longer period.
If the commission finds the complaint to be without merit, it shall issue a decision dismissing the complaint. If the commission finds that the violation alleged in the complaint has occurred, is occurring, or is proposed to occur, the commission shall order appropriate relief, except that the commission shall not issue any order under this subsection affecting the right of any person to hold an elective office or affecting the canvass of an election on or after the date of that election.
History: 2003 a. 265
; 2015 a. 118
s. 266 (10)
Action to compel compliance.
Whenever a violation of the laws regulating the conduct of elections or election campaigns, other than a violation of the laws regulating campaign financing, occurs or is proposed to occur, the attorney general or the district attorney of the county where the violation occurs or is proposed to occur may sue for injunctive relief, a writ of mandamus or prohibition, or other such legal or equitable relief as may be appropriate to compel compliance with the law. No bond is required in such actions.
History: 1973 c. 334
; 1983 a. 484
; Stats. 1983 s. 5.07; 1985 a. 304
; 2015 a. 118
Petition for enforcement.
In addition to or in lieu of filing a complaint, any elector may file a verified petition alleging such facts as are within his or her knowledge to indicate that an election official has failed or is failing to comply with any law regulating the conduct of elections or election campaigns, other than a law regulating campaign financing, or proposes to act in a manner inconsistent with such a law, and requesting that an action be commenced for injunctive relief, a writ of mandamus or prohibition or other such legal or equitable relief as may be appropriate to compel compliance with the law. The petition shall be filed with the district attorney for the county having jurisdiction to prosecute the alleged failure to comply under s. 978.05 (1)
. The district attorney may then commence the action or dismiss the petition. If the district attorney declines to act upon the petition or if the district attorney fails to act upon the petition within 15 days of the date of filing, the petitioner may file the same petition with the attorney general, who may then commence the action.
Petition for enforcement of voting rights.
The attorney general shall accept a verified petition from any person alleging failure to comply with section 2 of the federal voting rights act, 42 USC 1973
(a) and (b). The attorney general may commence an action or proceeding in any court of competent jurisdiction on behalf of any elector of this state whose rights under 42 USC 1973
(a) and (b) are violated.
History: 1985 a. 312
Although the names of the electors do not appear on the ballot and no reference is made to them, a vote for the president and vice president named on the ballot is a vote for the electors of the candidates for whom an elector's vote is cast. Under chs. 5
, all references to the presidential election, the casting of votes and the canvassing of votes for president, or for president and vice president, mean votes for them through their pledged presidential electors.
History: 1973 c. 334
; Stats. 1973 s. 5.10; 1977 c. 26
; 1979 c. 89
Division of municipalities into wards. 5.15(1)(a)1.1.
Every city, village, and town in this state shall by ordinance or resolution of its common council or village or town board, respectively, be divided into wards as provided in this section, except as authorized in sub. (2)
. The boundaries of the wards established under this section, and the number assigned to each ward, are intended to be as permanent as possible, and to this end each ward shall when created contain a population at a convenient point within the applicable population range under sub. (2) (b)
, with due consideration for the known trends of population increase or decrease within that part of the municipality in which the ward is located.
Once established, the boundaries of each ward shall remain unchanged until a further decennial federal census of population indicates that the population of a ward is then above or below the applicable population range, or until the ward boundaries are required to be changed to permit creation of supervisory or aldermanic districts of substantially equal population or to enhance the participation of members of a racial or language minority group in the political process and their ability to elect representatives of their choice, or until otherwise authorized or required under this section.
If the population of a ward has increased above the maximum of its population range or if the population of a ward must be decreased for a reason specified in subd. 2.
, the ward shall be divided into 2 or more wards in compliance with sub. (2) (b)
. If the population of a ward has decreased below the minimum of its population range or if the population of a ward must be increased for a reason specified in subd. 2.
, the ward shall, if possible, be combined with an adjoining ward, or the underpopulated ward and one adjoining ward shall be combined and together subdivided into 2 or more wards in compliance with sub. (2)
Except as authorized in sub. (2) (a)
, within 60 days after the receipt of a tentative supervisory district plan and written statement, if any, from the county board of each county in which a municipality is located, the governing body of the municipality shall adjust its wards according to the schedule shown in sub. (2)
. All territory contained within the municipality, and only the territory so contained, on April 1 of the year of the federal decennial census shall be contained within a ward established under the division ordinance or resolution. Except as authorized in sub. (2)
, each ward shall consist of whole blocks, as utilized by the U.S. bureau of the census in the most recent federal decennial census. To suit the convenience of the voters residing therein each ward shall, as far as practicable, be kept compact and observe the community of interest of existing neighborhoods and other settlements. All territory within a ward shall be contiguous, except for island territory as defined in sub. (2) (f) 3.
Enactment or adoption of a division ordinance or resolution requires the affirmative vote of a majority of the members of the governing body.
The wards established by municipal governing bodies in a division ordinance or resolution enacted or adopted under this section shall govern the adjustment of supervisory districts under s. 59.10 (2) (a)
and (3) (b)
and of aldermanic districts under s. 62.08 (1)
for the purpose of local elections beginning on January 1 of the 2nd year commencing after the year of the census until revised under this section on the basis of the results of the next decennial census of population unless adjusted under sub. (2) (f) 4.
, (6) (a)
, or (7)
, or unless a division is required to effect an act of the legislature redistricting legislative districts under article IV, section 3, of the constitution
or redistricting congressional districts. The populations of wards under each decennial ward division shall be determined on the basis of the federal decennial census and any official corrections to the census issued on or before the date of adoption of the division ordinance or resolution to reflect the correct populations of the municipality and the blocks within the municipality on April 1 of the year of the census.
Every ward shall be wholly contained within a single county.