Amendment SSA1-SB214

LRBs0296/1

MPG:skw&amn

2021 - 2022 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO SENATE BILL 214

February 21, 2022 - Offered by Senator Stafsholt.

SB214-SSA1,1,7 An Act to repeal 8.20 (8) (am); to renumber and amend 7.52 (1) (a); to amend 5.84 (1), 6.15 (4) (a), 6.15 (4) (b), 6.86 (1) (b), 6.87 (6), 6.88 (1), 6.88 (2), 7.15 (1) (cm), 7.52 (2), 7.52 (3) (a), 7.52 (4) (a), 7.52 (9) and 8.20 (8) (a); and to create 6.19, 6.88 (4), 7.52 (1) (a) 2., 7.52 (1) (d) to (g) and 7.52 (10) of the statutes; relating to: early canvassing of absentee ballots, issuance of presidential ballots, timeline for sending or transmitting absentee ballots, nomination papers for certain independent candidates, and providing a penalty.

Analysis by the Legislative Reference Bureau

Early canvassing of absentee ballots

Under current law, absentee ballots may not be canvassed until election day. Current law additionally provides that any municipality may provide by ordinance that, in lieu of canvassing absentee ballots at polling places, a municipal board of absentee ballot canvassers established by the municipality is responsible for canvassing all absentee ballots received by the municipal clerk by 8 p.m. on election day. In such a municipality, the board of absentee ballot canvassers is required to convene a meeting any time after the polls open and before 10 p.m. on election day to canvass the absentee ballots cast in the municipality in the election. Among the requirements governing such a meeting, any member of the public has the same right of access to the meeting that the individual would have to observe the canvassing of absentee ballots at a polling place.

Also under current law, other than as described above, votes, including votes cast by absentee ballot, are canvassed at the polling place after polls close on election day. However, in a municipality that uses an electronic voting system, the municipal clerk or municipal board of election commissioners may adjourn the vote canvass to a central counting location where votes cast at multiple polling places in the municipality and absentee ballots may all be counted after the polls close on election day.

This bill does all of the following:

1. Requires the municipal board of absentee ballot canvassers in a municipality having an ordinance described above to begin canvassing absentee ballots on the day before an election.

2. Provides that no municipality may utilize a central counting location unless it has passed an ordinance providing for the canvassing of absentee ballots by a board of absentee ballot canvassers.

3. Provides that the board of absentee ballot canvassers must publicly convene at 7 a.m. on the day before the election to begin the canvass of absentee ballots for the municipality and may not recess until 10 p.m. on that day, or at such time when there are no further absentee ballots to be processed on that day, whichever is earlier, at which time the meeting must recess and then reconvene at 7 a.m. on election day and continue until all absentee ballots received by the municipal clerk by 8 p.m. on election day have been canvassed.

4. Upon recess of the board of absentee ballot canvassers on the day before the election, at least once every four hours on election day until the polls close, and at least once every hour after the polls close until the canvass is complete, requires the municipal clerk or his or her designee to post, at his or her office and on the Internet at a site announced by the clerk before canvassing begins, and to make available to any person upon request, a statement that shows the number of absentee ballots that the board has canvassed and the number of absentee ballots returned to the clerk that remain to be canvassed.

5. If the meeting of the board of absentee ballot canvassers convenes and then recesses on the day before the election, requires the board to secure the automatic tabulating equipment, and the areas where the programmed media, memory devices, and absentee ballots are housed, with tamper-evident security seals in a double-lock location such as a locked cabinet inside a locked office. Before resuming the canvassing of absentee ballots on election day, the board must check and record the status of each tamper-evident seal and must immediately notify the Elections Commission of any evidence of tampering. If the board discovers evidence of tampering with respect to automatic tabulating equipment, the canvass may not resume until the equipment is replaced and the replacement equipment is tested. Also, if the board discovers evidence of tampering, the municipality must conduct a recount after the election and must audit the election equipment to verify the accuracy of the absentee ballot count.

6. Allows a board of absentee ballot canvassers to perform only certain tasks in canvassing of absentee ballots on the day before the election. Automatic tabulating equipment may not be used to tabulate absentee ballots until election day, and absentee ballots canvassed under the bill may not be tallied until after the canvass is complete or after the polls close on election day, whichever is later.

7. Provides that no person may act in a manner that would give him or her the ability to know or to provide information on the accumulating or final results from the ballots canvassed under the bill before the canvass is complete or before the polls close on election day, whichever is later. Whoever intentionally violates that prohibition is guilty of a Class I felony, the penalty for which is a fine not to exceed $10,000 or imprisonment not to exceed three years and six months, or both.

8. Authorizes, at the discretion of the municipal clerk, municipalities not utilizing a central counting location and not having a board of absentee ballot canvassers to begin processing absentee ballots beginning at 7 a.m. on the day before the election subject to requirements substantially similar to those described above.

Finally, under current law, criminal penalties are provided for election officials who commit certain specified kinds of election fraud. Otherwise, the willful neglect or refusal of an election official to perform a duty prescribed under the election laws is punishable by disqualification to act as an election official for five years. Under the bill, a member of the municipal board of absentee ballot canvassers or other election official who willfully neglects or refuses to perform any of the duties prescribed under the bill, and other duties prescribed under current law, with respect to the canvassing of absentee ballots by a municipal board of absentee ballot canvassers is guilty of a Class I felony.

Issuance of presidential ballots

Under current law, certain new and former residents of Wisconsin may apply for and receive a ballot for the purpose of voting only for candidates for president and vice president at a presidential election in Wisconsin. This bill prohibits poll workers and other election officials from providing a ballot used for voting for the offices of president and vice president only, unless the elector is a new or former resident of the state and applies and qualifies for the presidential ballot as provided by law.

Timeline for sending or transmitting absentee ballots

Current law requires a municipal clerk to send an absentee ballot for each partisan primary, presidential preference primary, and general election to all electors requesting the ballot, including military and overseas electors, no later than the 47th day before the partisan primary, presidential preference primary, or general election or, if the request is not made before that day, within one business day after the request is received. For all other primaries and elections, the municipal clerk must send or transmit the absentee ballot no later than the 21st day before the primary or election or, if the request is not made before that day, within one business day after the request is received.

Under the bill, a municipal clerk must send or transmit an absentee ballot for all primaries and elections, regardless of the type of primary or election, to electors other than military and overseas electors no later than the 21st day before the primary or election or, if the request is not made before that day, within one business day after the request is received. Under the bill, a municipal clerk must send or transmit an absentee ballot for all primaries and elections, regardless of the type of primary or election, to military and overseas electors no later than the 45th day before the primary or election or, if the request is not made before that day, within one business day after the request is received. That 45th day timeline is consistent with federal law.

Nomination papers for certain independent candidates

Under current law, nomination papers for independent candidates for any office to be voted upon at a general election, except president and vice president, may be circulated no sooner than the April 15 preceding the general election and must be filed no later than 5 p.m. on the June 1 preceding the partisan primary, which is held on the second Tuesday in August preceding the general election. Under current law, nomination papers for independent candidates for president and vice president may be circulated no sooner than the July 1 preceding the general election and must be filed no later than 5 p.m. on the first Tuesday in August preceding a presidential election.

Under the bill, the timeline for circulating and filing nomination papers for independent candidates for president and vice president is the same as that for all other independent candidates for offices to be voted on at the general election: nomination papers may be circulated no sooner than the April 15 preceding the general election and must be filed no later than the June 1 preceding the partisan primary.

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

SB214-SSA1,1 Section 1 . 5.84 (1) of the statutes is amended to read:

SB214-SSA1,5,12 5.84 (1) Where any municipality employs an electronic voting system which that utilizes automatic tabulating equipment, either at the polling place or at a central counting location, the municipal clerk shall, on any day not more than 10 days prior to the election day on which the equipment is to be utilized in an election, have the equipment tested to ascertain that it will correctly count the votes cast for all offices and on all measures. Public notice of the time and place of the test shall be given by the clerk at least 48 hours prior to the test by posting notice on the municipality's Internet site if it has one and by publication of a class 1 notice under ch. 985 in one or more newspapers published within the municipality if a newspaper is published therein, otherwise in a newspaper of general circulation therein. The test shall be open to the public. The test shall be conducted by processing a preaudited group of ballots so marked as to record a predetermined number of valid votes for each candidate and on each referendum. The test shall include for each office one or more ballots which have votes in excess of the number allowed by law and, for a partisan primary election, one or more ballots which have votes cast for candidates of more than one recognized political party, in order to test the ability of the automatic tabulating equipment to reject such votes. If any error is detected, the municipal clerk shall ascertain the cause and correct the error. The clerk shall make an errorless count before the automatic tabulating equipment is approved by the clerk for use in the election.

SB214-SSA1,2 Section 2 . 6.15 (4) (a) of the statutes is amended to read:

SB214-SSA1,5,18 6.15 (4) (a) Clerks holding new resident ballots shall deliver them to the election inspectors in the proper ward or election district where the new residents reside or, in municipalities where absentee ballots are canvassed under s. 7.52, to the municipal board of absentee ballot canvassers when it convenes at a meeting convened under s. 7.52 (1), as provided by s. 6.88 for absentee ballots.

SB214-SSA1,3 Section 3 . 6.15 (4) (b) of the statutes is amended to read:

SB214-SSA1,5,25 6.15 (4) (b) During polling hours, or on the day before the election if elected by the municipal clerk under s. 6.88 (4), the inspectors shall open each carrier envelope, announce the elector's name, check the affidavit for proper execution, and check the voting qualifications for the ward, if any. In municipalities where absentee ballots are canvassed under s. 7.52, the municipal board of absentee ballot canvassers shall perform this function at a meeting of the board of absentee ballot canvassers.

SB214-SSA1,4 Section 4. 6.19 of the statutes is created to read:

SB214-SSA1,6,4 6.19 Presidential ballots. (1) In this section, “presidential ballot” means a ballot that allows an elector to vote only for candidates for president and vice president.

SB214-SSA1,6,7 (2) No election inspector or other election official may provide a presidential ballot to an elector for voting at a presidential election, except as provided under ss. 6.15 and 6.18.

SB214-SSA1,5 Section 5 . 6.86 (1) (b) of the statutes is amended to read:

SB214-SSA1,7,8 6.86 (1) (b) Except as provided in this section, if application is made by mail, the application shall be received no later than 5 p.m. on the 5th day immediately preceding the election. If application is made in person, the application shall be made no earlier than 14 days preceding the election and no later than the Sunday preceding the election. No application may be received on a legal holiday. A municipality shall specify the hours in the notice under s. 10.01 (2) (e). The municipal clerk or an election official shall witness the certificate for any in-person absentee ballot cast. Except as provided in par. (c), if the elector is making written application for an absentee ballot at the partisan primary, the general election, the presidential preference primary, or a special election for national office, and the application indicates that the elector is a military elector, as defined in s. 6.34 (1), the application shall be received by the municipal clerk no later than 5 p.m. on election day. If the application indicates that the reason for requesting an absentee ballot is that the elector is a sequestered juror, the application shall be received no later than 5 p.m. on election day. If the application is received after 5 p.m. on the Friday immediately preceding the election, the municipal clerk or the clerk's agent shall immediately take the ballot to the court in which the elector is serving as a juror and deposit it with the judge. The judge shall recess court, as soon as convenient, and give the elector the ballot. The judge shall then witness the voting procedure as provided in s. 6.87 and shall deliver the ballot to the clerk or agent of the clerk who shall deliver it to the polling place election inspectors of the proper ward or election district or, in municipalities where absentee ballots are canvassed under s. 7.52, to the municipal clerk as required in s. 6.88. If application is made under sub. (2) or (2m), the application may be received no later than 5 p.m. on the Friday immediately preceding the election.

SB214-SSA1,6 Section 6 . 6.87 (6) of the statutes is amended to read:

SB214-SSA1,7,16 6.87 (6) The ballot shall be returned so it is delivered to the polling place election inspectors of the proper ward or election district no later than 8 p.m. on election day. Except in municipalities where absentee ballots are canvassed under s. 7.52, if the municipal clerk receives an absentee ballot on election day, the clerk shall secure the ballot and cause the ballot to be delivered to the polling place serving the elector's residence before 8 p.m. Any ballot not mailed or delivered as provided in this subsection may not be counted.

SB214-SSA1,7 Section 7 . 6.88 (1) of the statutes is amended to read:

SB214-SSA1,8,8 6.88 (1) When an absentee ballot arrives at the office of the municipal clerk, or at an alternate site under s. 6.855, if applicable, the clerk shall enclose it, unopened, in a carrier envelope which shall be securely sealed and endorsed with the name and official title of the clerk, and the words “This envelope contains the ballot of an absent elector and must be opened in the same room where votes are being cast at the polls during polling hours on election day or, in municipalities where absentee ballots are canvassed under s. 7.52, stats., at a meeting of the municipal board of absentee ballot canvassers under s. 7.52, stats only as provided by law." If the elector is a military elector, as defined in s. 6.34 (1), or an overseas elector, regardless of whether the elector qualifies as a resident of this state under s. 6.10, and the ballot was received by the elector by facsimile transmission or electronic mail and is accompanied by a separate certificate, the clerk shall enclose the ballot in a certificate envelope and securely append the completed certificate to the outside of the envelope before enclosing the ballot in the carrier envelope. The clerk shall keep the ballot in the clerk's office or at the alternate site, if applicable until delivered, as required in sub. (2).

SB214-SSA1,8 Section 8 . 6.88 (2) of the statutes is amended to read:

SB214-SSA1,8,22 6.88 (2) When an absentee ballot is received by the municipal clerk prior to the delivery of the official ballots to the election officials of the ward in which the elector resides or, where absentee ballots are canvassed under s. 7.52, to the municipal board of absentee ballot canvassers, the municipal clerk shall seal the ballot envelope in the carrier envelope as provided under sub. (1), and shall enclose the envelope in a package and deliver the package to the election inspectors of the proper ward or election district or, in municipalities where absentee ballots are canvassed under s. 7.52, to the municipal board of absentee ballot canvassers when it convenes at a meeting convened under s. 7.52 (1). When the official ballots for the ward or election district have been delivered to the election inspectors before the receipt of an absentee ballot, the clerk shall immediately enclose the envelope containing the absentee ballot in a carrier envelope as provided under sub. (1) and deliver it in person to the proper election officials.

SB214-SSA1,9 Section 9. 6.88 (4) of the statutes is created to read:

SB214-SSA1,9,3 6.88 (4) (a) At the municipal clerk's discretion, and subject to pars. (b) to (f), the election inspectors may convene a meeting to begin processing absentee ballots beginning at 7 a.m. on the day before the election.

SB214-SSA1,9,8 (b) The municipal clerk shall give at least 48 hours' notice of a meeting under this subsection. Any member of the public has the same right of access to observe the proceedings at a meeting under this subsection that the individual would have under s. 7.41. The election inspectors may order the removal of any individual exercising the right to observe the proceedings if the individual disrupts the meeting.

SB214-SSA1,9,17 (c) Upon recess of a meeting convened under this subsection on the day before the election, at least once every 4 hours on election day until the polls close, and at least once every hour after the polls close until the canvass is complete, the municipal clerk or his or her designee shall post, at the municipal clerk's office and on the Internet at a site announced by the clerk before canvassing begins, and shall make available to any person upon request, a statement that shows the number of absentee ballots that the election inspectors have canvassed and the number of absentee ballots returned that remain to be canvassed. The posting may not include the names or addresses of any electors.

SB214-SSA1,9,25 (d) If the meeting of the election inspectors recesses on the day before the election, the election inspectors shall place the absentee ballots in secure ballot bags and shall secure the automatic tabulating equipment, and the areas where the programmed media, memory devices, and absentee ballots are housed, with tamper-evident security seals in a double-lock location such as a locked cabinet inside a locked office. Before resuming the canvassing of absentee ballots on election day, the election inspectors shall check and record the status of each tamper-evident seal. The election inspectors shall immediately notify the commission of any evidence of tampering. If the election inspectors discover evidence of tampering with respect to automatic tabulating equipment, the canvass may not resume until the equipment is replaced and the replacement equipment is tested as provided in s. 5.84. If the election inspectors discover evidence of tampering under this paragraph, the municipality shall conduct a recount after the election of all absentee ballots cast in the municipality in the election in the manner provided under s. 9.01 and shall audit the election equipment to verify the accuracy of the absentee ballot count in the municipality in the election.

SB214-SSA1,10,12 (e) Only those tasks specified in sub. (3) may be performed on the day before the election. Automatic tabulating equipment may not be used until election day, and absentee ballots canvassed under this section may not be tallied until after the canvass is complete or after the polls close on election day, whichever is later.

SB214-SSA1,10,17 (f) No person may intentionally act in a manner that would give him or her the ability to know or to provide information on the accumulating or final results from the ballots canvassed under this section before the canvass is complete or before the polls close on election day, whichever is later. Whoever intentionally violates this paragraph is guilty of a Class I felony.

SB214-SSA1,10 Section 10 . 7.15 (1) (cm) of the statutes is amended to read:

SB214-SSA1,11,10 7.15 (1) (cm) Prepare official absentee ballots for delivery to electors requesting them, and except as provided in this paragraph, send an official absentee ballot to each elector who has requested a ballot by mail, and to each military elector, as defined in s. 6.34 (1), and overseas elector who has requested a ballot by mail, electronic mail, or facsimile transmission, no later than the 47th 45th day before each partisan primary, presidential preference primary, special primary or election, and general election and no later than the 21st day before each other primary and election if the request is made before that day; otherwise, the municipal clerk shall send or transmit an official absentee ballot within one business day of the time the military or overseas elector's request for such a ballot is received. The clerk shall send or transmit an absentee ballot for the presidential preference primary to each elector who has requested that to all other electors requesting a ballot no later than the 47th 21st day before the presidential preference primary or election if the request is made before that day, or, if the request is not made before that day, within one business day of the time the request is received. For purposes of this paragraph, “business day" means any day from Monday to Friday, not including a legal holiday under s. 995.20.

SB214-SSA1,11 Section 11 . 7.52 (1) (a) of the statutes is renumbered 7.52 (1) (a) 1. and amended to read:

SB214-SSA1,12,4 7.52 (1) (a) 1. The governing body of any municipality may provide by ordinance that, in lieu of canvassing absentee ballots at polling places under s. 6.88, the municipal board of absentee ballot canvassers designated under s. 7.53 (2m) shall, at each election held in the municipality, canvass all absentee ballots received by the municipal clerk by 8 p.m. on election day. Prior to enacting an ordinance under this subsection subdivision, the municipal clerk or board of election commissioners of the municipality shall notify the elections commission in writing of the proposed enactment and shall consult with the elections commission concerning administration of this section. At every election held in the municipality following enactment of an ordinance under this subsection subdivision, the board of absentee ballot canvassers shall, any time after the opening of the polls and before 10 p.m. on election day, publicly convene at 7 a.m. on the day before the election to count the begin the canvass of absentee ballots for the municipality and may not recess until 10 p.m. on that day, or at such time when there are no further absentee ballots to be processed on that day, whichever is earlier, at which time the meeting shall recess; the meeting shall reconvene at 7 a.m. on election day and continue until all absentee ballots received by the municipal clerk by 8 p.m. on election day have been canvassed.

SB214-SSA1,12,11 3. The municipal clerk shall give at least 48 hours' notice of any the meeting under this subsection. Any member of the public has the same right of access to a meeting of the municipal board of absentee ballot canvassers under this subsection that the individual would have under s. 7.41 to observe the proceedings at a polling place. The board of absentee ballot canvassers may order the removal of any individual exercising the right to observe the proceedings if the individual disrupts the meeting.

SB214-SSA1,12 Section 12 . 7.52 (1) (a) 2. of the statutes is created to read:

SB214-SSA1,12,15 7.52 (1) (a) 2. No municipality may utilize a central counting location under s. 7.51 (1) unless the governing body of the municipality has adopted an ordinance under subd. 1.

SB214-SSA1,13 Section 13 . 7.52 (1) (d) to (g) of the statutes are created to read:

SB214-SSA1,12,25 7.52 (1) (d) Upon recess of the board of absentee ballot canvassers on the day before the election, at least once every 4 hours on election day until the polls close, and at least once every hour after the polls close until the canvass is complete, the municipal clerk or his or her designee shall post, at the municipal clerk's office and on the Internet at a site announced by the clerk before canvassing begins, and shall make available to any person upon request, a statement that shows the number of absentee ballots that the board of absentee ballot canvassers has canvassed and the number of absentee ballots returned that remain to be canvassed. The posting may not include the names or addresses of any electors.

SB214-SSA1,13,17 (e) If the meeting of the board of absentee ballot canvassers recesses on the day before the election, as provided under par. (a), the board of absentee ballot canvassers shall place the absentee ballots in secure ballot bags and shall secure the automatic tabulating equipment, and the areas where the programmed media, memory devices, and absentee ballots are housed, with tamper-evident security seals in a double-lock location such as a locked cabinet inside a locked office. Before resuming the canvassing of ballots on election day, the board of absentee ballot canvassers shall check and record the status of each tamper-evident seal. The board of absentee ballot canvassers shall immediately notify the commission of any evidence of tampering. If the board of absentee ballot canvassers discovers evidence of tampering with respect to automatic tabulating equipment, the canvass may not resume until the equipment is replaced and the replacement equipment is tested as provided in s. 5.84. If the board of absentee ballot canvassers discovers evidence of tampering under this paragraph, the municipality shall conduct a recount after the election of all absentee ballots cast in the municipality in the election in the manner provided under s. 9.01 and shall audit the election equipment to verify the accuracy of the absentee ballot count in the municipality in the election.

SB214-SSA1,13,21 (f) Only those tasks specified in subs. (2) to (6) may be performed on the day before the election. Automatic tabulating equipment may not be used until election day, and absentee ballots canvassed under this section may not be tallied until after the canvass is complete or after the polls close on election day, whichever is later.

SB214-SSA1,14,2 (g) No person may intentionally act in a manner that would give him or her the ability to know or to provide information on the accumulating or final results from the ballots canvassed under this section before the canvass is complete or before the polls close on election day, whichever is later. Whoever intentionally violates this paragraph is guilty of a Class I felony.

SB214-SSA1,14 Section 14 . 7.52 (2) of the statutes is amended to read:

SB214-SSA1,14,14 7.52 (2) In counting the absentee ballots, the board of absentee ballot canvassers shall use 2 duplicate copies of a single absentee poll list for the entire municipality prepared in accordance with s. 6.36 (2). Upon accepting reviewing each absentee ballot certificate envelope to ensure that it satisfies all applicable legal requirements, the board of absentee ballot canvassers shall enter a poll list sequential count number on the absentee poll list next to the name of the elector who voted the ballot, beginning with the number one. If the elector's name does not appear on the absentee poll list, the board of absentee ballot canvassers shall enter the number on a separate list maintained under this subsection. The board of absentee ballot canvassers shall record each elector's sequential count number on the face of the elector's certificate envelope.

SB214-SSA1,15 Section 15 . 7.52 (3) (a) of the statutes is amended to read:

SB214-SSA1,15,14 7.52 (3) (a) The board of absentee ballot canvassers shall first open the carrier envelope only, and, in such a manner that a member of the public, if he or she desired, could hear, announce the name of the absent elector or the identification serial number of the absent elector if the elector has a confidential listing under s. 6.47 (2). When the board of absentee ballot canvassers finds that the certification has been properly executed and the applicant is a qualified elector of the ward or election district, the board of absentee ballot canvassers shall enter an indication, including the elector's sequential count number as provided under sub. (2), on the absentee poll list next to the applicant's name indicating an absentee ballot is cast by the elector. The board of absentee ballot canvassers shall then open the envelope containing the ballot in a manner so as not to deface or destroy the certification thereon. The board of absentee ballot canvassers shall take out the ballot without unfolding it or permitting it to be unfolded or examined and shall remove the ballot from the certificate envelope. Unless the ballot is cast under s. 6.95, the board of absentee ballot canvassers shall verify that the ballot has been endorsed by the issuing clerk. If the absentee poll list indicates that proof of residence is required and no proof of residence is enclosed or the name or address on the document that is provided is not the same as the name and address shown on the absentee poll list, the board of absentee ballot canvassers shall proceed as provided under s. 6.97 (2). The board of absentee ballot canvassers shall mark the poll list number of each elector who casts an absentee ballot on the back of the elector's ballot. The board of absentee ballot canvassers shall then deposit the ballot into the proper ballot box and enter the absent elector's name or poll list number after his or her name on the poll list or automatic tabulating equipment.