SB612: Bill Text

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

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.

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.

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.

The bill modifies the statutory language regarding "electioneering" to provide that the prohibition on electioneering also applies to electioneering at a polling place.

In addition, the bill prohibits the posting or distribution of election-related material during polling hours on any public property on election day at a polling place or within 100 feet of an entrance to a building containing a polling place. Similarly, the bill prohibits such conduct in relation to the municipal clerk's office or an alternate absentee ballot site during hours that absentee ballots may be cast therein. For purposes of the bill, "election-related material" means any written matter which describes, or purports to describe, the rights or responsibilities of individuals voting or registering to vote at a polling place or voting by absentee ballot. The prohibition would not apply to material posted or distributed by the municipal clerk or other election officials or to a bumper sticker on a motor vehicle. The bill authorizes a municipal clerk, election inspector, or law enforcement officer to remove or confiscate unauthorized election-related material. Finally, the bill provides that a violation of the election-related material prohibition is punishable by a forfeiture not to exceed $100.

Map of Area Served by Polling Place

The bill requires that the municipal clerk or board of election commissioners in municipalities with multiple polling places to prominently post at each polling place a map of the geographic area served by each polling place for that election. The map must display the boundaries of the ward or wards served by the polling place for that election.

Lists of Felons Ineligible to Vote

Under current law, any person who is convicted of a felony is not eligible to vote. However, if the person is pardoned or the person completes his or her sentence, the person's voting rights are restored. A person who is on probation, parole, or extended supervision has not completed his or her sentence. Under current law, there is no procedure that election officials must use to identify felons who are ineligible to vote and to prevent them from voting.

The bill directs the department of corrections (DOC) to transmit electronically to the elections board, on a continuous basis, a list containing the names of each person who has been convicted of a felony under the laws of this state and whose voting rights have not been restored, together with the date on which DOC expects his or her voting rights to be restored. The bill directs the board to enter the information received from DOC on the statewide voter registration list and to maintain the information on that list so that the information is kept current. Under the bill, the information is open to public inspection.

The bill also directs the elections board to enter on the poll list prepared for each election a notation after the name of any elector who is ineligible to vote on that date because the person's name appears on the current list that DOC provides. In addition, the bill directs the board to provide for each polling place at each election a list of persons whose names do not appear on the registration list but whose names appear on the current list that DOC provides and whose addresses are located within the area served by the polling place. These lists are open to public inspection.

The bill requires poll workers to check the lists and to inform any person whose name appears on the lists that they are ineligible to register to vote or to vote. A person whose name appears on a list and who claims to be eligible to vote may still be allowed to vote, but the person must vote by ballot. The ballot is marked for later examination and it may be reviewed and discounted during a canvass or recount if the appropriate board of canvassers determines that the person who cast the ballot is ineligible to vote.

The bill also requires every person who registers to vote to affirm specifically that he or she has not been convicted of a felony for which he or she has not been pardoned and, if so, whether the person is incarcerated or on probation, parole, or extended supervision resulting from that conviction. Currently, the law requires a person who registers at a polling place only to affirm that he or she is not disqualified on any ground from voting, and does not require any similar affirmation from other late registrants.

In addition, the bill directs the elections board to conduct a postelection audit after each election to determine whether any ineligible felons have been allowed to register and vote after the close of registration. If so, the board is directed to enter a notation reflecting this ineligibility on the registration list and to provide the names of these felons to the district attorney.

Finally, the bill requires DOC to create a form for notifying individuals of their ineligibility to vote. When an inmate who is disqualified from voting is released on parole or extended supervision, the DOC must use the form to notify the person that he or she may not vote until his or her civil rights are restored. The person and a witness must sign the form. The same procedure must be followed for each probationer, and by the court every time it imposes a sentence or places a defendant on probation for a conviction that disqualifies him or her from voting.

Additional Poll Worker: Greeter

Under current law, there must be at least 3 inspectors (poll workers) at each polling place. Municipalities may increase that number and may appoint special registration deputies on a nonpartisan basis to register voters at polling places on election day. Inspectors must be appointed from lists containing the names of eligible electors submitted by party committeemen and committeewomen. If no names or insufficient names are submitted, inspectors are appointed on a nonpartisan basis. Certain high school pupils may also be appointed to serve as inspectors. The party whose candidate for president or governor received the most votes in the area served by the polling place at the most recent general election is entitled to one more appointment than the other party. Alternate officials must also be appointed in a sufficient number to maintain adequate staffing.

The bill provides that each municipality may appoint an additional inspector on a nonpartisan basis who serves as a greeter and substitutes for other inspectors who must leave the voting room temporarily. Under the bill, the additional inspector is not entitled to participate in the canvassing process.

POST-ELECTION PROCEDURES

Time for Delivery of Election Material

Currently, by 2 p.m. on the day after an election, the municipal clerk must deliver the ballots, statements, tally sheets, lists, and envelopes for the clerk's municipality concerning any county, technical college district, state, or national election to the county clerk. In addition, current law requires the municipal clerk to arrange for delivery of these materials concerning a school district election to the school district clerk, but does not specify a time by which that delivery must take place. The bill sets the deadline for delivery of these materials at 4 p.m. on the day after an election.

Post-Election Inspectors' Statements

Under current law, after ballots have been counted and votes recorded at the polling place on appropriate tally sheets, inspectors' statements must be completed in duplicate, and all materials secured and routed to the appropriate clerk. The bill deletes the requirement that inspectors' statements be completed in duplicate. Instead, under the bill, the municipal clerk must make copies of the inspectors' statement for delivery to the county or school district clerk, or both. The municipal clerk must retain the original statement.

County and Municipal Clerk Serving on Board of Canvassers

Generally, under current law, the municipal and county board of canvassers is composed of the municipal or county clerk and 2 appointed members. No person may serve on the board if he or she is a candidate at an election to be canvassed. The bill allows the county and municipal clerk to continue to serve on the respective board of canvassers if the clerk is a candidate as long as he or she has no opponent on the ballot, or, in the event of a recount, the office the clerk is seeking is not a subject of the recount.

Grounds for Recall of Certain Local Elective Offices

Under current law, a petition for the recall of a city, village, town, or school district officer, in addition to other requirements, must state a reason for the recall that is related to the official responsibilities of the officer. Current law also provides for the removal of elective village, town, and school district officers and certain elective city officers, for cause, after notice and a hearing. Under current law, inefficiency, neglect of duty, official misconduct, or malfeasance in office constitute cause for removal from office.

The bill requires a petition for the recall of a city, village, town, or school district officer to contain a statement of the grounds that constitute each cause for the recall. Under the bill, "cause" means official misconduct or malfeasance in office.

Retention of Unused Ballots After an Election

The bill provides that unused ballots from an election may not be discarded or destroyed until at least the day after the latest day for the filing of a recount petition for any office on the ballots. In addition, the bill authorizes the county clerk to store any such unused ballots upon request of a municipal clerk of a municipality within the county and authorizes the county clerk to destroy the ballots pursuant to provisions of the bill.

Recount Procedures

Under current law, the state elections board is required to prescribe standard forms and procedures for the making of recounts. Additionally, when a recount is being conducted, if the ballots are in readable form such that automatic tabulating equipment may be used to count the ballots, the board of canvassers conducting the recount may choose to recount the ballots without the aid of automatic tabulating equipment. If automatic tabulating equipment is to be used, the equipment must be tested prior to the recount.

The bill requires the procedures developed by the elections board to require boards of canvassers in recounts involving more than one board of canvassers to consult with the elections board staff prior to beginning any recount to ensure that uniform procedures are used, to the extent practicable, in conducting such recounts.

In addition, the bill requires boards of canvassers to use automatic tabulating equipment to recount ballots that are in machine-readable form. The bill provides, however, that a candidate, or elector if the recount is for a referendum question, may petition the circuit court for an order requiring ballots in readable form to be counted by hand or by another method approved by the court. The petition must be filed by the close of business on the next business day after the last day for filing a petition for a recount. To prevail, the petitioner must establish by clear and convincing evidence that due to an irregularity, defect, or mistake committed during the voting or canvassing process the results of a recount using automatic tabulating equipment will produce incorrect recount results and that there is a substantial probability that recounting the ballots by hand or another method will produce a more correct result and change the outcome of the election. The court with whom the petition is filed must hear the matter as expeditiously as possible, without a jury. Only if the court determines that the petitioner has made the required showing may the court order a recount of the ballots by hand or other method. The procedure created by the bill does not affect the ability of an aggrieved candidate or elector under current law to appeal the outcome of a recount to circuit court upon completion of the recount.

Post-Election Audits

The bill requires the elections board, by no later than December 31, 2006, to prepare recommendations with regard to random post-election audits of local election practices to be conducted in the fall of odd-numbered years. The recommendations must include recommendations on how election practices in a given municipality may be reviewed by election officials of other, similar-sized municipalities and how such audits may be funded by the state. The recommendations must be submitted to the legislature.

Effective date

All changes to the law proposed by the bill take effect on July 1, 2006, or on the day after publication, whichever is later.

SB612, s. 1 Section 1. 5.02 (6m) of the statutes is repealed.

SB612, s. 2 Section 2. 5.02 (16g) of the statutes is created to read:

SB612,17,5 5.02 (16g) "Qualified circulator" means a qualified elector of this state or any U.S. citizen age 18 or older who, if he or she were a resident of this state, would not be disqualified from voting under s. 6.03.

SB612, s. 3 Section 3. 5.35 (6) (a) 4a. of the statutes is amended to read:

SB612,18,3 5.35 (6) (a) 4a. Instructions prescribed by the board for electors for whom identification proof of residence under s. 6.34 is required under s. 6.36 (2) (c) 2 6.55 (2).