Wisconsin Legislature: SB612: Bill Text

Under current law, any elector who is unable or unwilling to appear at the polling
place in his or her ward on election day may vote by absentee ballot. An elector seeking
to vote by absentee ballot must generally make a written application to the municipal
clerk. An application may be made by one of the following methods: (1) by mail; (2) in
person at the office of the municipal clerk; (3) by signing a statement indicating the elector
is indefinitely confined or disabled; (4) by agent when the elector is hospitalized; or (5) by
delivering an application to a special voting deputy when the elector is an occupant of a
nursing home and similar facilities.

The bill authorizes a registered elector, including a registered "overseas elector",
or an elector who qualifies as a "military elector", who is unable or unwilling to appear
at the polling place in his or her ward on election day to apply for an absentee ballot by
making a written application to the municipal clerk by facsimile transmission (fax) or
electronic mail (email). The application must contain a copy of the applicant's original
signature. When the absentee ballot is returned, the elector must enclose a copy of the
absentee ballot request bearing an original signature of the elector along with the ballot.
Ballots cast in contravention of this procedure are not to be counted.

Deadline for Requesting Absentee Ballot by Mail

Under current law, requests for absentee ballots made by an elector by mail must
be received by the municipal clerk by 5 p.m. on the Friday preceding the election. The
bill changes the deadline for such requests to no later than 5 p.m. on the 5th day
immediately preceding the election, except for applications submitted by mail by military
electors and indefinitely confined electors. Under the bill, applications by mail from these
electors retain the current deadline of 5 p.m. on the Friday before the election.

Absentee Ballots for Military Electors - Permanent Ballots

Under current law, "military electors" are defined to be any of the following:

1. Members of a uniformed service (i.e., the U.S. army, navy, air force, marine corps,
or coast guard, the commissioned corps of the federal public health service, or the national
oceanic and atmospheric administration).

2. Members of the U.S. merchant marine.

3. Civilian employees of the U.S. and civilians officially attached to a uniformed
service who are serving outside the U.S.

4. Peace corps volunteers.

5. Spouses and dependents of the above who reside with or accompany them.

In general, and with some exceptions, a military elector is to vote in the ward or
election district for the address of his or her residence prior to becoming a military elector.
In general, military electors are not required to register as a prerequisite to voting in any
election.

A military elector may request an absentee ballot for any election, or for all
elections until the individual otherwise requests or until the person no longer qualifies
as a military elector. An absentee ballot application from a military elector may be
received at any time. In general, as an alternative to a regular absentee ballot request
form, a federal postcard registration and absentee ballot request form may be used to
apply for an absentee ballot by a military elector if the municipal clerk can determine that
the applicant is qualified to vote in the election district where he or she seeks to vote and
that the applicant is qualified to receive an absentee ballot as a military elector.

For military electors who are in the uniformed service and on active duty, members
of the merchant marine, and the spouse and dependents of such persons who are absent
because of the duty or service of the member, current law also provides that such electors
may request an absentee ballot for the next 2 general elections. A municipal clerk must
comply with such a request except that no absentee ballot may be sent for a succeeding
general election if the elector's name appeared on the registration list for a previous
general election and no longer appears on the registration list for the succeeding general
election. Further, if the elector's address for the succeeding general election is in a
municipality that is different from the municipality in which the elector resided for the
first general election, current law requires the clerk to forward the request to the clerk
of the municipality where the elector resides.

Currently, a municipal clerk must send a ballot, as soon as available, to each
military elector who requests a ballot. However, the clerk may not send a ballot for an
election if the application is received later than 5 p.m. on the Friday preceding that
election. Whenever absentee ballots are sent to military electors, they must be prepared
and mailed to make use of the federal free postage laws.

The bill modifies current law to provide that every request by any military elector
must be treated as a request for an absentee ballot for all subsequent elections. Under
the bill, if a municipal clerk receives a request for an absentee ballot from a military
elector, the municipal clerk must send an absentee ballot to the elector for all elections
that occur after the request is received. The bill allows a military elector to provide an
alternate address on the absentee ballot application and requires the municipal clerk to
send an absentee ballot to that alternate address if a ballot sent to the elector's primary
address is returned as undeliverable.

The bill authorizes a municipal clerk to stop sending a ballot to a military elector
in the following situations: (1) if 2 successive general elections go by and a military elector
fails to return an absentee ballot for any election during that time period; (2) if the clerk
is reliably informed that the elector is no longer a military elector or no longer resides in
the municipality; (3) if the elector is subject to a registration requirement and his or her
name no longer appears on the registration list as an eligible elector; or (4) if the elector
so requests. Prior to discontinuing sending ballots to a military elector solely for the
failure to return absentee ballots, the municipal clerk must notify the elector by mail that
no future ballots will be sent unless the elector renews his or her absentee ballot request
within 30 days. The bill also requires the municipal clerk to notify a military elector of
any action to discontinue sending ballots to the elector not taken at the elector's request
within 5 days of taking that action, if possible.

Late-Arriving Absentee Ballots From Military Electors

Under current law, absentee ballots must be returned to the municipal clerk in
time for delivery to the polls before the polls close. Any ballot not delivered by this
deadline may not be counted.

The bill provides that a vote cast on a ballot cast by a "military elector", as defined
above, that is received by the municipal clerk after the close of the polls may, in some
situations, still be counted. Under the bill, a vote cast on a ballot that is received after
the polls close is considered a valid ballot if it is received by the clerk by the deadline for
requesting a recount for the office for which the vote is cast and if it contains a postal
service cancellation mark dated on or before the election day for which the ballot was cast.
However, under the bill these ballots will not be counted unless a recount occurs.

Under the bill, a certificate envelope sent to a military elector must be clearly
labeled so that when it is returned the clerk will know that it is from a military elector.
If a certificate envelope that is returned by a military elector after the polls close but
before the deadline for the return of such ballots has an illegible postmark, or no
postmark, it is presumed that the envelope was timely mailed, unless established
otherwise.

The bill directs the municipal clerk to post in his or her office on election night and
on an internet site a statement announcing the number of absentee ballots that have not
been returned by military electors by the closing of the polls. However, the posting may
not include the names or addresses of any military electors.

Under the bill, if a recount petition is filed, the municipal clerk must immediately
notify the appropriate board of canvassers as to the number of absentee ballots that were
timely received after the polls closed and whether any absentee ballots that were sent to
military electors have not been returned. If there are unreturned ballots at the time a
recount petition has been filed, the bill provides that the recount may not proceed until
all timely returned ballots are delivered by the clerk or 9 a.m. on the day following the
last day for filing a recount petition, whichever occurs first.

As soon as practicable after receiving the last late-arriving ballot but in no case
later than 9 a.m. on the day following the last day for filing a recount petition, the clerk
must transmit to the appropriate board of canvassers all of the late-arriving ballots of
military electors received by the clerk.

When the board of canvassers conducting a recount receives late-arriving
absentee ballots cast by military electors, the board must first open and record the names
of the military electors whose ballots have been received. If the late-arriving ballot cast
by a military elector is otherwise valid, the board of canvassers must count the ballot and
adjust the original statements, certifications, and determinations. After doing so, the
board of canvassers may begin the recount.

Witness for Absentee Ballots

Under current law, military and overseas voters who cast absentee ballots must
have a witness who is an adult U.S. citizen. All other absentee ballots must have a
witness, but the age and nationality of the witness is not specified. The bill requires all
absentee ballots to be witnessed by an adult U.S. citizen.

Elimination of Prepaid Return Postage and Notice of Hours

Generally, under current law, if the municipal clerk sends an absentee ballot to an
elector, the ballot must include sufficient return postage to return the ballot from
anywhere within the United States. The bill specifies that if the absentee ballot is mailed
from outside the United States, the elector must affix sufficient postage for return of the
ballot unless the ballot qualifies for mailing free of postage under federal law. The bill
also modifies the notice that a clerk must post to include the hours that an elector can cast
an absentee ballot in the clerk's office or an alternate site.

Opening Absentee Ballots in Public

Under current law, absentee ballot envelopes must be opened at the polling place
during poll hours and the ballots placed in the ballot box without disclosing how the voter
voted. When the envelopes are opened, the inspector is required to publicly announce the
names or serial numbers of the absent electors casting the ballots.

The bill adds language to ensure that this opening process is done so that election
observers may hear and see the process.

Observation of Absentee Voting in Certain Nursing Homes and Other Facilities

Under current law, there is a separate procedure for absentee voting by residents
of nursing homes, and certain community-based residential facilities and retirement
homes. If a resident of such a facility requests an absentee ballot, the clerk will arrange
a time to send 2 special deputies to the facility to facilitate absentee voting by the
residents. The time that the deputies visit the home or facility is not announced prior to
the visit.

The bill requires the municipal clerk to maintain a list, available to the public, of
all of the facilities where an absentee ballot has been requested and when the special
deputies will be visiting the facility. In addition, the clerk must post a notice at the facility
indicating when the special deputies will be visiting. The bill also allows one observer
from each of the recognized political parties whose candidate for governor or president
received the greatest numbers of votes in the municipality at the most recent general
election to accompany the deputies to observe the distribution of absentee ballots in the
common areas of the facility. The deputies are given the same authority as the chief
election inspector to monitor this observer's conduct.

Alternate Absentee Ballot Site

Under current law, persons may apply for and vote an absentee ballot at the
municipal clerk's office prior to election day. In addition, absentee ballots that are not
voted at the clerk's office are to be returned to the clerk's office in time for delivery to the
polls before the polls close on election day.

The bill authorizes the governing body of a municipality (city, village, or town) to
establish an alternate absentee ballot voting site in lieu of the municipal clerk's office to
facilitate absentee ballot applications, voting of absentee ballots, and the return of
absentee ballots prior to the close of the polls. Generally, the decision to move the
absentee ballot functions to this alternate site must be made and the location of the
alternate location must be established no later than 14 days prior to the time when
absentee ballots are available for voting at a primary, if a primary is required (generally
30 days before a September primary and 21 days before other primaries, including the
Spring primary) and the site must be used until at least the day after the election
following the primary. No absentee ballot functions that are to take place at this alternate
site may be conducted at the municipal clerk's office so long as the alternate site is used.
The bill requires notice of the alternate site to be prominently displayed in the office of
the municipal clerk beginning on the date that the site is selected and continuing during
the time that absentee ballots are available and requires a notice of the alternate site to
be published in a newspaper along with other absentee ballot information required under
current law and on an Internet site if one is maintained by the municipal clerk. The bill
requires the alternate site to be staffed by the municipal clerk or by employees of the
clerk. The alternate site must be accessible and located as near as practicable to the office
of the clerk, but may not be located so as to afford an advantage to any political party.
Observation and electioneering laws would apply to alternate locations established
under the bill.

Election Observers

Under current law, any member of the public may be present at any polling place
for the purpose of observing an election, except a candidate at that election. The chief
inspector at the polling place is authorized to "reasonably limit" the number of persons
representing the same organization who are permitted to observe an election at the same
time. In addition, the chief inspector is authorized to restrict the location of observers to
certain areas at a polling place. Such an area is to be clearly designated as an observation
area. Observation areas must be positioned to allow observers to readily observe all
public aspects of the voting process. The statutes authorize a chief inspector to order the

removal from a polling place of any observer who commits an overt act which disrupts the
operation of the polling place or who engages in electioneering in violation of the law.

Under the statutes, an observer may not view the confidential portion of a
registration list relating to an individual who has obtained a confidential listing based
on domestic abuse. However, the poll workers must disclose to an observer, upon request,
the existence of such a list, the number of electors whose names appear on the list, and
the number of those electors who have voted at any point during the election. In addition,
an observer may not view the certificate of an absent elector who has obtained such a
confidential listing. Current law prohibits any person from refusing to obey a lawful
order of a poll worker made for the purpose of enforcing the election laws; engaging in
disorderly behavior at or near a polling place; or interrupting or disturbing the voting or
canvassing proceedings. A person violating this prohibition may be fined not more than
$1,000, or imprisoned for not more than 6 months, or both.

The bill applies the above observation provisions to the municipal clerk's office or
an alternate absentee ballot site authorized by the governing body of a municipality on
any day that absentee ballots may be cast in that office. However, the observation
provisions created by the bill would only apply to offices of municipal clerks that are
located in public buildings. Accordingly, these provisions would not apply to clerks whose
offices are located in their primary residences. In addition, the prohibition on a
"candidate at that election" being an observer is clarified to apply to a candidate whose
name appears on the ballot at the polling place or on an absentee ballot to be cast at the
clerk's office or alternate site.

Electioneering

Current law prohibits an election official from engaging in "electioneering" on
election day. In addition, the law prohibits any person from engaging in "electioneering"
during polling hours on any public property on election day within 100 feet of an entrance
to a building containing a polling place. This restriction, though, does not apply to the
placement of any material on the bumper of a motor vehicle that is located on such
property on election day. A municipal clerk, poll worker, or law enforcement officer is
authorized to remove posters or other advertising that violates the prohibitions on
"electioneering".

The law defines "electioneering" as any activity that is intended to influence voting
at an election. Persons who violate the above prohibitions on electioneering may be fined
not more than $1,000, or imprisoned for not more than 6 months, or both. In addition,
any election official who is convicted of violating the electioneering prohibitions is
disqualified from acting as an election official for a term of 5 years from the time of the
conviction.

The bill extends the prohibitions on electioneering to the municipal clerk's office
or an alternate absentee ballot site authorized by the governing body of a municipality
during times when absentee voting may be conducted in the office or at the alternate site.
Specifically, the bill prohibits the clerk, or an employee of the clerk, from engaging in
electioneering activities at those locations during the hours that absentee ballots may be
cast. In addition, the bill prohibits any person from engaging in electioneering activities
during the hours that absentee ballots may be cast in the municipal clerk's office or at an
alternate absentee ballot site on any public property within 100 feet of an entrance to a
building that contains the clerk's office or the alternate site. Violations of these provisions
are subject to the same penalties as provided under current law for electioneering at a
polling place.

Option to Count Absentee Ballots at a Central Location

Currently, each absentee ballot must be received at the polling place serving an
elector's residence no later than 8 p.m. on election night for the ballot to be counted. The
municipal clerk or board of election commissioners delivers all absentee ballots received
by the clerk or board to the appropriate polling places. The inspectors (poll workers)
canvass the absentee ballots, together with the other ballots, publicly on election day by

marking the names of the absentee electors on the same poll list that is used to mark the
names of the electors who vote in person. Any member of the public may observe the
proceedings. Any elector may challenge for cause any absentee ballot that the elector
knows or suspects is not cast by a qualified elector, whether the absentee ballot is cast in
person at the office of a municipal clerk or board of election commissioners or the ballot
is received in some other manner. Unless an absentee ballot is challenged or voted
provisionally, it is not identifiable once it is counted, except that an absentee ballot may
be distinguished from another ballot because it carries the initials of the municipal clerk
or executive director of the board of election commissioners or a designated deputy. The
inspectors at each polling place announce the results of each election when the canvass
is completed on election night. Each municipal canvass must be completed by 2 p.m. on
the day after each election, and each county canvass must begin no later than 9 a.m. on
the Thursday following an election.

The bill permits the governing body of any municipality, by ordinance, to
discontinue the canvassing of absentee ballots at polling places. Before enacting such an
ordinance, a municipality must notify and consult with the Elections Board concerning
the alternative procedure for canvassing absentee ballots that will be used. Under the
bill, if absentee ballots are not canvassed at polling places, a municipal board of absentee
ballot canvassers, appointed by the municipal clerk, must publicly convene any time after
the polls open and before 10 p.m. on election day for the purpose of counting absentee
ballots. To assist the board of absentee ballot canvassers, a municipality that canvasses
absentee ballots at a central location may appoint additional inspectors in accordance
with the same procedure that is used to appoint inspectors at polling places. Any
inspectors so appointed are under the direction and supervision of the board of absentee
ballot canvassers. Under the bill, the board of absentee ballot canvassers does not
announce the results of its count until the canvass of all absentee ballots is completed.
The bill provides for the board of absentee ballot canvassers to conduct a cross-check of
absentee ballots for any potential duplication by electors who also cast ballots in person.
To accomplish the cross-check, the board of absentee ballot canvassers numbers each
absentee ballot as it is counted, and if the elector who casts the ballot also casts a ballot
in person, the absentee ballot is not counted. The bill permits any elector to challenge any
absentee ballot for cause. The bill extends the time for completion of the municipal
canvass by 2 hours but does not extend the time by which the county canvass must begin.

PRE-ELECTION PROCEDURES

Qualifications of Circulators of Nomination Papers and Petitions

Under current law, each nomination paper and petition for an election must be
circulated by a qualified elector of the jurisdiction or district in which the paper or petition
is circulated. However, in Frami v. Ponto, 255 F. Supp. 962 (W.D. Wis. 2003), a federal
district court ruled that this residency requirement is unconstitutional and prevented the
state from enforcing the statutory requirement.

The bill removes the residency requirement by providing that a circulator of a
nomination paper or petition must be a qualified elector of this state or a U.S. citizen age
18 or over who, if he or she were a resident of the state, would not be disqualified from
voting because he or she is incompetent, a felon whose right to vote has not been restored,
or involved in a wager or bet depending upon the result of the election.

Notice of School District Referendum

Currently, proposed constitutional amendments and other measures or questions
to be submitted to a vote of the people must be filed with the official or agency responsible
for preparing the ballots for the election no later than 42 days prior to the election at
which the amendment, measure, or question will appear on the ballot.

The bill requires, in addition, that a copy of a measure or question to be submitted
to a vote of the people on behalf of a school district be provided to the clerk of each county

having territory within the school district no later than the end of the next business day
after the school district clerk receives the measure or question.

Contingency Planning Report

The bill requires the elections board to submit a report and recommendations to
the legislature on state and local election-related contingency planning efforts and
preparedness regarding natural disasters and terrorist activities that may occur at or
near election time. The report is due on the first day of the 7th month beginning after
publication of the bill as an act.

Guidance to Local Units of Government Regarding Election-Related Purchases

Under current law, the election administration council consists of members of the
public and local election officials appointed by the executive director of the elections
board. The council is to assist the elections board to establish the state's election
administration plan under HAVA.

The bill requires the election administration council to also provide guidance to
local units of government concerning the procurement of election apparatus, ballots,
ballot forms, materials, and supplies for use in elections in this state to help ensure that
competitive prices are obtained.

Term of Appointment for Certain Election Officials

Under current law, election officials are appointed for a 2-year term. The
appointments are made in December of each even-numbered year. The bill changes the
date that election officials are appointed to December of each odd-numbered year.

Election Official Training

Under current law, the elections board conducts training programs for chief
inspectors (chief officials at polling places). No person may serve as a chief inspector if
he or she has not been certified by the elections board as having met the requirements
prescribed by the board for certification. The elections board must also prescribe
requirements for maintaining certification. The elections board may also conduct
training programs for other election officials. Municipal clerks and boards of election
commissioners are required to train all election officials, and municipalities may require
applicants for election official positions to take examinations. Currently, the elections
board and municipal clerks and boards of election commissioners may appoint special
registration deputies who obtain voter registrations from electors prior to the close of
registration and municipal clerks may appoint special voting deputies to conduct voting
at nursing homes and certain retirement homes and community-based residential
facilities. Currently, the clerks and boards of election commissioners must train the
deputies in accordance with rules prescribed by the elections board.

Beginning for elections held in 2008, the bill requires all municipal clerks to receive
election training at least once every 2 years. The bill authorizes the elections board to
produce and periodically update a video program and make the program available
electronically through an Internet-based system for training purposes. Also, the bill
requires municipal clerks to train all poll workers other than chief inspectors, who
continue to be trained and certified under current law, as well as special registration
deputies and special voting deputies pursuant to rules developed by the elections board.
The bill provides that no person may serve as a poll worker, special registration deputy,
or special voting deputy unless that person has received training required in the bill
unless certain unforeseen circumstances occur. Under the bill, municipalities are
required to compensate election officials other than special registration deputies and
special voting deputies for attendance at training sessions as currently provided.

ELECTION DAY PROCEDURES

High School Student Poll Workers

Generally, a pupil who is 16 or 17 years of age, who is enrolled in grades 9 to 12 in
a public or private school, and who has at least a 3.0 grade point average (GPA) may serve

as an inspector (poll worker) at the polling place serving the pupil's residence. Approval
of the pupil's parent or guardian and of the school principal is required. There must be
at least one qualified elector of the state serving at the polling place for a pupil to be
appointed and a pupil may not serve as chief inspector. The term of appointment of an
inspector lasts for 2 years and until his or her successor is appointed and qualified.

The bill eliminates the minimum GPA requirement and instead authorizes school
boards to develop criteria for approving students to serve as poll workers. The bill also
modifies the term of service of a high school pupil appointed to serve as an inspector.
Under the bill, a high school pupil is appointed for one election only rather than for 2
years. The bill does not prohibit such a pupil from being appointed to serve at future
elections.

Poll Closing Procedures When Voters Waiting to Vote

Under current law, any elector waiting to vote, whether within the polling booth
or in the line outside the booth at the time the polls officially close must be permitted to
vote.

The bill requires each municipal clerk to designate an official of the municipality
who must position himself or herself at the end of the line of individuals waiting to vote
at the time the polls officially close as a way to mark the end of the line. The bill provides
that the official may be a poll worker at the polling place, an employee of the municipal
clerk, or a police officer.

Conduct of Election Observers

Currently, any person who refuses to obey a lawful order of a poll worker made for
the purpose of enforcing the election laws, who engages in disorderly behavior at or near
a polling place, or who interrupts or disturbs the voting or canvassing proceedings may
be fined not more than $1,000, or imprisoned for not more than 6 months, or both.

The bill directs the elections board to promulgate rules regarding the proper
conduct of observers at polling places, municipal clerk's offices, or alternate absentee
ballot sites, including the interaction of observers with election officials at polling places.
The bill requires the rules to be submitted to the legislative council staff for review by the
60th day beginning after publication of the bill as an act.

Proof of Residence Required of Certain Voters

Under current law, effective January 1, 2006, a person, other than a military
elector or an overseas elector, who registers to vote by mail and who has not previously
voted in an election for national office in Wisconsin must provide identification, as
specified by law, before being allowed to vote at an election for national office. A person
who is required to provide identification before voting but who fails to do so may cast a

provisional ballot which may be counted if the person subsequently presents
identification before 4 p.m. on the day after the election.

The bill creates a proof of residence requirement applicable to all persons other
than military or overseas electors who register to vote by mail and have not voted in an
election in this state.

Election Threats

Current law, in s. 12.09 of the statutes, prevents the making of various election
threats. Violations of that section are punishable as a Class I felony (a fine not to exceed
$10,000 or imprisonment not to exceed 3 years and 6 months, or both).

Presently, s. 12.09, stats., is drafted as one paragraph consisting of 3 distinct
components, each of which prohibits different conduct. The provision reads as follows:

No person may personally or through an agent make use of or threaten to make use
of force, violence or restraint in order to induce or compel any person to vote or refrain from
voting at an election; or, by abduction, duress or any fraudulent device or contrivance,
impede or prevent the free exercise of the franchise at an election; or by any act compel,
induce or prevail upon an elector either to vote or refrain from voting at any election for
or against a particular candidate or referendum.

The bill, in order to improve the readability of the provision, repeals the provision
and recreates it with 3 distinct subsections. The bill makes no substantive changes to the
law and violations would still be subject to the same penalties as provided under current
law.

Prohibition on Certain Election-Related Material

Current law defines "electioneering" as any activity which is intended to influence
voting at an election. Under current law, "electioneering" is prohibited at or near the
entrances to polling places on election day. Specifically, the law prohibits an election
official from engaging in "electioneering" on election day. In addition, the law prohibits
any person from engaging in "electioneering" during polling hours on any public property
on election day within 100 feet of an entrance to a building containing a polling place.
This restriction, though, does not apply to the placement of any material on the bumper
of a motor vehicle that is located on such property on election day. A municipal clerk, poll
worker, or law enforcement officer is authorized to remove posters or other advertising
that violates the prohibitions on "electioneering".

Persons who violate the above prohibitions on electioneering may be fined not more
than $1,000, or imprisoned for not more than six months, or both. In addition, any
election official who is convicted of violating the electioneering prohibitions is disqualified
from acting as an election official for a term of five years from the time of the conviction.