Analysis Prepared by the Wisconsin Elections Commission
1. Statutes Interpreted: Sections 5.02(6m), 5.25(4)(a), 5.35(4), 5.85, 7.41, 6.82, 6.87(5), 6.875(6)(c)1., 6.875(7) 6.34(3), 5.35(5), 7.37(2), 6.86(1)(b), 6.855, 6.88, 9.01(3), 7.52(1)(a), Stats. 3. Explanation of Agency Authority:
Section 7.41(5), Stats., requires the Commission to promulgate rules concerning the conduct of election observers and their interactions with election officials. Section 5.05(1), Stats., established the statutory authority and framework for regulation and administration of elections. It specifically states: “[t]he elections commission shall have the responsibility for the administration of chs. 5 to 10 and 12 and other laws relating to elections and election campaigns, other than laws relating to campaign financing.” Section 5.05(1)(f), Stats., allows the Commission to “Promulgate rules under ch. 227 applicable to all jurisdictions for the purpose of interpreting or implementing the laws regulating the conduct of elections or election campaigns, other than laws regulating campaign financing, or ensuring their proper administration.” Section 7.08(3), Stats., requires the Commission has authority to prepare and publish an election manual, that can be “easily understood by the general public explaining the duties of the election officials, together with notes and references to the statutes as the commission considers advisable.” Section 227.11(2)(a), Stats., authorizes the commission to promulgate rules interpreting the statutes administered by the agency. 4. Related Statutes or Rules:
Because election observers will observe in person and absentee voting processes, many elections statutes are related. The most directly related statutes are sections 6.875(7), 7.52(1)(a), which directly extend the ability to observe the voting process to voting with Special Voting Deputies and processing of absentee ballots at a board of absentee ballot canvassers location, respectively. Section 9.01(3) explains the ability to observe at a recount. 5. Plain Language Analysis:
The Commission intends through this order to promulgate its required rule on election observers. The rule intends to clarify and bring uniformity to election observation for the benefit of voters, election officials, and observers. The rule will clarify the who is able to observe elections, define the rights and limitations of what election observers may do, differentiate election observers from election inspectors, and create a more stream-lined and accessible set of instructions for election observers to follow during the election process.
Section EL 4.02 defines terms relevant to observing elections, which should allow the process to proceed from known standards. Section, EL 4.03 then address the conduct of election officials, explaining how they may limit the number of observers, check in and provide information to observers, establish observation areas so that observers can election processes, make observation areas accessible, warn observers, and remove observers from the location.
Section EL 4.04 describes the conduct of observers, explaining how to check in as an observer, move between observable locations, ask questions, challenge voters, take or not take images, and the general decorum expected of individuals observing voting. Section EL 4.05 details requirements specific to the different kinds of locations that may be observed, namely polling places, clerk offices or alternate sites, board of absentee ballot canvassers locations, Special Voting Deputy served facilities, and recounts. Sections EL 4.07 explains opportunities for media members to arrange with election officials times for reporting on voting. 6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
The Federal Government does not implement a specific approach to election observering and it instead vests broad power to the states to decide individually how to conduct their elections.
7. If Held, Summary of Comments Received During Preliminary Comment Period and at Public Hearing on the Statement of Scope:
The Commission held a virtual open session meeting on the statement of scope on January 17, 2023. Eleven members of the public attended the public meeting, many of whom commented on negative experiences they had as an Election Observer. The comments included concerns on how to coordinate Elections Observers from certain parties and concerns on the recommended amount of space that Election Observers should be positioned away from voters. Additionally, some of the comments suggested that the Commission assemble an advisory committee of key stakeholders to share insights concerning the Election Observers scope statement. Additionally, a number of observers commented that they were not allowed to use chairs or bathrooms that were available in the location. Some suggested that observers be allowed to go to the polling place prior to the election to give feedback on the layout of the polling place set up. Generally, the comments were in favor of the Commission addressing the issues presented in rulemaking.
8. Comparison with Similar Rules in Adjacent States:
Illinois, Michigan, Iowa, and Minnesota all have different terms for their versions of election observers, and all have processes outlined in statute that differ from section 7.41, Stats. Rather than election observers Illinois has “Poll-Watchers.” The qualifications and credentials needed to be a Poll-Watcher in Illinois are laid out in the state’s statutes as well as their rights and limitations. While there are strict qualifications to becoming a Poll-Watcher in Illinois, that is not the case in Michigan. Anyone, other than a candidate for elective office, can serve as a Poll-Watcher and may observe elections in Michigan. Michigan differentiates its Poll-Watchers from what it calls Election Challengers. Michigan details its rules and parameters in a document provided by the Michigan Bureau of Elections and ratified by the State of Michigan's Secretary of State. Contrary to the previously covered states, Minnesota does not authorize poll-watching. Minnesota sets out in statute how to become an appointed Election Challenger in addition to the rights, limitations, and appointment process to becoming one. Lastly, and with a method similar to the state of Michigan, Iowa has its poll-watching parameters set in both statute and a guide prepared by the Office of the Iowa Secretary of State. This guide provides a corresponding Iowa statute that solidifies each of the suggested actions for poll-watchers as law. The guide labels a poll-watcher as a person who has official permission to be at the polling place on election day or in the room where absentee ballots are counted before the polls close. If a poll-watcher is acting as a challenger however, Iowa requires a different set of requirements to be allowed to challenge. 9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
N/A
10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
N/A
11. Effect on Small Business (initial regulatory flexibility analysis):
N/A
12. Agency Contact Person:
Brandon Hunzicker
P.O. Box 7984, Madison, WI 53703-7984
608-267-0714
13. Place where comments are to be submitted and deadline for submission:
Written comments may be emailed to brandon.hunzicker@wisconsin.gov. While email is preferred, comments can also be mailed to P.O. Box 7984, Madison, WI 53703-7984. The deadline to submit comments concerning the Economic Impact Statement is March 11, 2024. An upcoming notice of a public hearing will contain a deadline for comments concerning the rule text. (See PDF for image)
RULE TEXT
SECTION 1. EL 4 is created to read:
EL 4.01 Right to vote. Nothing in this chapter shall be construed to distract, disrupt, obstruct, slow, or prevent a qualified elector from casting a lawful ballot or registering to vote.
EL 4.02 Definitions. In this chapter:
(1) “Accessibility reviewer” means an individual authorized by the Commission who monitors compliance with s. 5.25(4)(a), Stats. An accessibility reviewer is not an observer under this chapter. (2) “Commission” means the Wisconsin Elections Commission.
(3) “Chief inspector” means the chief inspector at a polling place, under s.7.30(6)(b), Stats.
(4) “Clerk” means the municipal clerk, or the executive director of a municipal board of election commissioners, under s. 5.02(10), Stats. (5) “Communications media member” means an individual who communicates to the designated election official that the individual seeks to record or report information outside the voting area. Except as provided in s. EL 4.07(3), a communications media member is not an observer under this chapter. (6) “Confidential information” means information that is not part of the public aspects of the voting process, including an operator’s license or identification card number issued by the Wisconsin Department of Transportation, a birth date, a Social Security number or any portion thereof, accommodation information on a voter registration form, information concerning a confidential elector, guardianship information, a voted ballot, and a communication by a voter to a person rendering voting assistance under ss. 6.82, 6.87(5), or 6.875(6)(c)1., Stats. Confidential information does not include the type of document that is submitted for photo identification as defined by s. 5.02(6m) Stats. or for a proof of residency document as defined by s. 6.34(3) Stats., but includes the information provided thereon. (7) “Designated election official” means the chief inspector, if the observable location is a polling place, or the clerk, or any other election official designated by a chief inspector or clerk to carry out the election responsibilities under this chapter. At a facility served by special voting deputies, designated election official means the special voting deputies. At a recount, designated election official means the board of canvassers.
(8) “Electioneering” has the meaning given in s. 12.03(4), Stats. (9) “Election official” means an individual who is charged with any duties relating to the conduct of an election. An individual authorized by the Commission to conduct any election related activities is an election official in this chapter.
(10) “Inspector” or “election inspector” means an individual appointed pursuant to s. 7.30, Stats., to conduct an election. (11) Member of the public” means an individual, excluding an election official, a candidate appearing on the ballot at that observable location, or a registered write-in candidate for an office voted on at that observable location.
(12) “Observable location” means a polling place, a municipal clerk’s office that is located in a public building, an alternate absentee ballot site, a meeting location of a board of absentee ballot canvassers, a facility served by special voting deputies, a central count location, or a recount location during those hours specified in this chapter as permitting observation.
(13) “Observe” means to see or hear and does not include physically handling election related materials or materials provided by the voter.
(14) “Observer” means a member of the public who has signed in as an observer at an observable location and is present at an observable location to observe an election or the absentee ballot voting process.
(15) “Organization” means an organization represented by an observer at an observable location under this chapter and shall not be construed to be limited to political parties, candidates, or campaigns.
(16) “Posting and distribution of election-related material” has the meaning given in s. 12.035, Stats. (17) “Public aspects of the voting process” means the election activities that take place at an observable location during those hours specified in this chapter as permitting observation, except for inspection of confidential materials as defined in sub. (6).
(18) “Representing the same organization” means individuals who were deployed, assigned, trained by, or who identify as representing the same organization.
(19) “Voting Area” is that area at an observable location where electors receive, prepare, or deposit their ballots, or where electors cast their votes on a voting machine.
EL 4.03 Conduct of election officials.
(1) Due to physical limitations or the orderly administration of elections, or both, the designated election official may reasonably limit the number of observers representing the same organization who are present at any one time at an observable location. If the designated election official acts under this subsection, all organizations shall be limited in a uniform manner and the designated election official shall document the actions taken and the reasons why. The designated official may use a copy of an inspectors’ statement or other incident log to comply with this subsection.
(2) The designated election official shall maintain an observer log and shall require a member of the public intending to exercise the right to observe an election under s. 7.41, Stats., to enter the required information under EL 4.04(1) into the observer log and shall ensure that the photo ID presented reasonably resembles the observer and the name entered. (a) After completing the log, an observer shall be offered a summary of the rules governing election observers at the observable location, and be informed of the following:
1. To whom at the observable location the observer may direct questions during the day,
2. How the observer may move between observation areas throughout the day, and
3. The location where a ballot may be remade, if applicable.
(b) After the requirements of par. (a) have been met, an observer shall then be directed to an area of the observable location established by the designated election official as an observation area. An observer log shall be returned to the municipal clerk after the election activities at an observable location have concluded.
(3) The designated election official shall provide each observer with a sticker, badge, or other item that identifies an individual as an observer and distinguishes observers from election officials.
(4) The designated election official shall establish at least one observation area to enable observers to readily observe all public aspects of the voting process during the election without disrupting the voting process. An observation area shall be not less than 3 feet nor more than 8 feet from each table at which electors announce their names and addresses to be issued voter numbers or at which election officials announce the name of absentee voters; not less than 3 feet nor more than 8 feet from each table at which electors may register to vote; and not less than 3 feet nor more than 8 feet from each table at which election inspectors remake any ballots.
