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Rule-Making Notices
Notice of Hearing
Government Accountability Board
NOTICE IS HEREBY GIVEN that pursuant to sections 5.05 (1) (f) and 227.11 (2) (a), Stats., and interpreting section 7.41, Stats., the Government Accountability Board will hold a public hearing to consider adoption of an emergency and permanent rule to repeal and recreate Chapter GAB 4, Wis. Adm. Code, relating to observers at a polling place or other location where votes are being cast, counted or recounted.
Hearing Information
A public hearing will be held at the time and place shown below:
Date and Time:
Location:
December 13, 2010
Monday
9:30am
Government Accountability Board Office
Third Floor
212 E. Washington Ave.
Madison, WI 53703
This public hearing site is accessible to people with disabilities. If you have special needs or circumstances that may make communication or accessibility difficult at the hearing, please contact the Agency Contact listed below.
Submittal of Written Comments
Comments may be submitted by December 13, 2010, to the Government Accountability Board, 212 E. Washington Ave. Third Floor, P.O. Box 7984, Madison, WI 53707-7984; (gab.wi.gov).
Analysis Prepared by the Government Accountability Board
Statute(s) interpreted
Section 7.41 of the Wisconsin Statutes
Statutory authority
Sections 5.05 (1) (f), 7.41 (5), and 227.11 (2) (a), Stats.
Explanation of statutory authority
This rule repeals and re-creates Chapter GAB 4, Election observers, interpreting s. 7.41 of the Wisconsin Statutes – Public's right to access. Express rule-making authority to interpret the provisions of statutes the Board enforces or administers is conferred on it pursuant to s. 227.11 (2) (a), Stats. In addition, s. 5.05 (1) (f), Stats., provides that the Board may promulgate rules under ch. 227, Stats., for the purpose of interpreting or implementing the laws regulating the conduct of elections or election campaigns or ensuring their proper administration. Furthermore, the Board is empowered by s. 7.41 (5), Stats., to promulgate rules consistent with the supervisory authority of a chief inspector at any polling place on election day, regarding the proper conduct of individuals exercising the right under s. 7.41, Stats., to readily observe all public aspects of the voting process in an election.
Related statute(s) or rule(s)
Sections 5.35 (5), 7.37 (2) and 12.13 (3) (x), Stats., relating to maintaining order at the polling place, and other locations where observation of the public aspects of the voting process is taking place, and enforcing compliance with the lawful commands of the inspectors at the polling place.
Plain language analysis
This rule repeals and recreates rule Chapter GAB 4, relating to observers and observation of the public aspects of the voting process at polling places and other locations where observation of the public aspects of the voting process is taking place.
Summary of, and comparison with, existing or proposed federal regulations
Observers and observation of the voting process is a matter of state regulation, not federal regulation. Consequently, no federal legislation or regulation applies to observers in Wisconsin or any other state.
Comparison with rules in adjacent states
The States of Illinois, Iowa, Michigan and Minnesota all have legislation that allows persons to observe at the polling places in that state, but none of those states allows any member of the public to show up at a polling place and observe because each of those states requires prospective observers to register with the municipal clerk before the election and receive authorization to observe.
Summary of factual data and analytical methodologies
Adoption of the rule was not predicated on any factual data or analytical methodologies, but on observation eliminating provisions of the former Ethics Board's and Elections Board's rules that were inconsistent with the provisions or intent of the new law merging those agencies into the new Government Accountability Board.
Analysis and supporting documents used to determine effect on small businesses
Preparation of an economic impact report is not required. The Government Accountability Board does not anticipate that the repeal and recreation of the described provisions will have an economic impact.
Small Business Impact
The creation of this rule does not affect business.
Initial regulatory flexibility analysis
The creation of this rule does not affect the normal operations of business.
Fiscal Estimate
The creation of this rule has no fiscal effect.
Text Of Proposed Rule
Pursuant to the authority vested in the State of Wisconsin Government Accountability Board by ss. 5.05 (1) (f) and 227.11 (2) (a), Stats., the Government Accountability Board hereby repeals Chapter GAB 4, Election observers, and creates new Chapter GAB 4, Election observers, as follows:
SECTION 1. Chapter GAB 4 is repealed.
SECTION 2. Chapter GAB 4 is created to read:
Chapter GAB 4 Election Observers
GAB 4.01 Observers at the polling place.
(1) In this chapter:
(a) "Board" means the Government Accountability Board.
(b) "Chief inspector" means the chief inspector at a polling place, under s. 7.30 (6) (b), Stats., or the election official that the chief inspector designates to carry out the responsibilities of the chief inspector under this chapter.
(c) "Clerk" means the municipal or county clerk, the executive director of the board of election commissioners, or the official designated by the clerk or director to carry out the election responsibilities under this chapter.
(d) "Communications media" has the meaning given in s. 11.01(5), Stats.
(e) "Electioneering" has the meaning given in s. 12.03 (4), Stats.
(f) "Member of the public" means any individual who is present at any polling place, or in the office of any municipal clerk whose office is located in a public building on any day that absentee ballots may be cast in that office, or at an alternate site under s. 6.855, Stats., on any day that absentee ballots may be cast at that site, for the purpose of observation of an election or the absentee ballot voting process, excluding a candidate appearing on the ballot at that polling place or a registered write-in candidate, for an office voted on at that polling place or other location.
(g) "Public aspects of the voting process" means the election activities that take place at a polling place, or other observation location, that includes waiting in line to vote by inspectors, the election day registration process, the recording of electors under s. 6.79 Stats., the elector's receipt of a ballot, the deposit of the ballot into the ballot box, a challenge to an elector's right to vote, the issuing of a provisional ballot, and the counting and reconciliation process.
(2) Any member of the public intending to exercise the right to observe an election under s. 7.41, Stats., shall notify the chief inspector of that intent upon entering the voting area of a polling place. The observers shall sign a form acknowledging they understand the applicable rules and will abide by them. The observers shall also list their full name, street address and municipality, and the name of the organization or candidate the observer represents, if any, on the form. The inspector shall attach the form to the Inspectors' Statement, EB-104. The chief inspector shall provide the observer with a name tag supplied by the board which reads "Election Observer." Observers shall wear this name tag at all times when they are inside the polling place.
(3) To ensure the orderly conduct of the election, the chief inspector may reasonably limit the number of observers representing a particular organization or candidate.
(4) The chief inspector shall direct the observer to an area of the polling place designated by the chief inspector as an observation area.
(5) The observation area shall be situated to enable observers to observe all public aspects of the voting process during the election. When physically feasible within the polling place, the observation area shall be not less than 6 feet nor more than 12 feet from the table at which electors are announcing their name and address and being issued a voter number. If observers are unable to hear the electors stating their name and address, the poll workers shall repeat the name
and address. If necessary to ensure all public aspects of the process are readily observable, the chief inspector shall set up additional observation areas near the election-day registration table and area where elector challenges are handled.
(6) Observers shall comply with the chief inspector's lawful commands or shall be subject to removal from the polling place.
(7) All of the observers' questions and challenges shall be directed to the chief inspector.
(8) Upon receiving a challenge to a voter's ballot at the polling place, the chief inspector shall follow the challenge procedure in Chapter GAB 9, Wis. Adm. Code. The challenge shall be recorded on the Challenge Documentation Form, EB-104c.
(9) If any observer engages in any loud, boisterous, or otherwise disruptive behavior that, in the opinion of the chief inspector, threatens the orderly conduct of the election or interferes with voting, the chief inspector shall warn the offending observer(s) that such conduct shall cease or the observer shall have to leave the polling place
(10) If, after receiving the warning provided in sub. 9, the offending observer does not cease the offending conduct, the chief inspector shall order the offending observer to depart the polling place. If the offending observer declines or otherwise fails to comply with the chief inspector's order to depart, the chief inspector shall summon local law enforcement to remove the offending observer.
(11) While in the polling place, observers shall keep conversation to a minimum and shall try to conduct whatever conversation is necessary at a low enough volume to minimize distraction to electors and to the election inspectors and any other election officials. Failure to adhere to this subsection shall result in a warning under sub. 9 and, if the conduct continues, removal under sub. 10.
(12) Observers shall be permitted to view the poll lists, excluding the confidential portions of the lists maintained under ss. 6.35 (4) and 6.79 (6), Stats., as long as doing so does not interfere with or distract electors under s. 5.35 (5) Stats. Observers shall not be permitted to make a photocopy or take photographs of the poll lists on election-day.
(13) Observers shall not be permitted to handle an original version of any official election document.
(14) Observers shall not engage in electioneering as defined in s.12.03, Stats. If an observer violates s. 12.03, Stats., the chief inspector shall issue a warning under sub. 9 and, if the conduct continues, shall order the offending observer to depart the polling place or suffer removal under sub. 10.
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