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.
(5) An election official shall repeat, once and then at the election official’s discretion, a name or address upon request.
(6) The designated election official shall position an observer area to minimize contact between observers and voters and election officials.
(7) An observation area shall be accessible to observers with disabilities and shall include sufficient space for mobility equipment, chairs, or other disability aids brought by an observer.
(8) The designated election official shall permit an observer access to any available chair within the observable location and with the same access to restrooms available to election officials at the observable location.
(9) The designated election official of any observable location that is unable to accommodate the observation areas as described in sub. (4) shall record the reason the requirements were not met and shall send a copy of that record to the Commission within 60 days of the election for which the observable location was active.
(10) In a manner established by the designated election official, election officials shall allow an observer to observe absentee ballot certificate envelopes that have been set aside to be rejected.
(11) An election official shall permit an observer to observe the poll lists, excluding the confidential portions of the lists maintained under ss. 6.36(4) and 6.79(6), Stats., at such times as election officials determine that doing so does not interfere with or distract electors under s. 5.35(5) Stats., and does not interfere with the conduct of the election under s. 6.45(1m), Stats. (12) No election official may permit an observer to handle an original version of any official election document.
(13) No election official may permit an observer to observe any confidential information.
(14) If an observer violates a provision of this chapter or any applicable election statute the designated election official shall, verbally or in writing, warn an observer one time to cease the offending conduct.
(a) If an observer does not cease the offending conduct following a warning under this section, the designated election official may order an observer to depart from the observable location. If the designated election official is a person other than the Chief Inspector or municipal clerk, the designated election official shall notify the Chief Inspector or municipal clerk.
(b) If the offending observer who is ordered to depart under par. (a) declines or otherwise fails to comply with the designated election official’s order to depart, the official may summon law enforcement to remove the offending observer consistent with s. 7.37(2), stats. The designated election official shall provide a written order to the observer which includes the reason for the order and the signature of the designated election official. (c) If the designated election official who has issued an order to an observer to depart has been appointed from a list provided by a political party under s. 7.30 (4) Stats. an election official representing the opposite political party than the designated election official, if available timely on a timely basis, shall be offered the opportunity to sign the written order, and to note any concurrence or disagreement with that order. Failure of that election official to sign the written order, or the unavailability of that official to review the order in a timely fashion, does not affect the enforceability of that order. (d) If an observer is ordered to leave an observable location, the incident shall be recorded and the designated election official shall, within 60 days of the incident, provide to the Commission a copy of the order and any other documentation of the incident. The designated official may use a copy of an inspectors’ statement or other incident log to comply with this subsection.
EL 4.04 Conduct of observers.
(1) A member of the public intending to exercise the right to observe an election under s. 7.41, Stats., shall notify the designated election official of that intent upon entering the observable location and shall sign the election observer log acknowledging that the observer understands the applicable rules and will abide by them. An observer shall present photo identification showing the observer’s name to the designated election official and shall legibly print the observer’s full name, street address and municipality, and the name of the organization the observer represents, if any, on the observer log. The photo identification does not need to conform to the requirements of s. 5.02(6m), Stats. (2) An observer shall comply with the designated election official’s commands or shall be subject to removal from the observable location pursuant to EL 4.02(14)(a).
(3) If more than one observation area is established within an observable location, an observer may move between such areas in a manner established by the designated election official.
(4) An observer may direct questions to the designated election official or other election officials as determined by the designated election official and communicated to observers when they sign the observer log pursuant to s. EL 4.03(2)(a)1. (5) Any challenges brought by a qualified observer against a voter for cause shall be directed to an election official in accordance with ss. 6.925, 6.93, 6.935 Stats., and Ch. EL 9 Wis. Admin. Code. (6) No observer may engage in any loud, boisterous, or otherwise disruptive behavior, that, in the discretion of the designated election official, threatens the orderly conduct of the election or interferes with voting or registration.
(7) No observer may create or transmit photographs, videos, or audio recordings of any observable location except as expressly permitted by this chapter.
(8) An observer shall keep conversation to a minimum and shall conduct whatever conversation is necessary at a low enough volume to minimize distraction to electors and election officials.
(9) No observer may engage in electioneering as defined in s. 12.03, Stats., or the posting or distribution of election-related material as defined in s. 12.035, Stats. (10) No observer may display the name or likeness of, or text related to, a candidate, party, or referendum position appearing on the ballot, or display text which describes, states, or implies that the observer is an election official.
(11) No observer may engage in any conversation concerning a candidate, party, or question appearing on the ballot.
(12) No observer may use a communication device inside an observer area to make an audio or video communication. Text messaging, email, and other non-audible uses of such a device are permissible except as otherwise prohibited by this chapter.
(13) No observer may initiate a conversation with a voter. If a voter initiates a conversation with an observer inside an observable location, except as allowed by subsection (13), the observer may briefly respond to the voter if such response does not disturb other voters or the orderly administration of the election. The observer may also refer the voter to an election official for any election related questions, and briefly explain to the voter that the observer is observing the election and is not an election official. A brief wave or greeting to an individual known to the observer does not constitute a violation of this section.
(14) An observer may communicate with the designated election official and any other election officials at the discretion of the designated election official.
