Amendment SSA1-AB377

LRBs0596/1

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2005 - 2006 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO 2005 ASSEMBLY BILL 377

February 28, 2006 - Offered by Senator Leibham.

AB377-SSA1,1,3 An Act to renumber and amend 6.22 (4); to amend 6.22 (5), 6.87 (6) and 9.01 (1) (b) (intro.); and to create 6.22 (5m) of the statutes; relating to: absentee balloting by military electors.

Analysis by the Legislative Reference Bureau

Under current law, absentee ballots must be returned to the municipal clerk in time for delivery to the polls before the polls close. Any ballot not delivered by this deadline may not be counted.

This substitute amendment provides that a vote cast on a ballot cast by a "military elector", as defined by law, that is received by the municipal clerk after the close of the polls may, in some situations, still be counted. Under the substitute amendment, a vote cast on a ballot that is received after the polls close is considered a valid ballot if it is received by the municipal clerk or board of election commissioners by the deadline for requesting a recount for the office for which the vote is cast and if it contains a postal service cancellation mark dated on or before the election day for which the ballot was cast. However, under the substitute amendment these ballots will not be counted unless a recount occurs.

Under the substitute amendment, a certificate envelope sent to a military elector must be clearly labeled so that when it is returned the municipal clerk or board of election commissioners will know that it is from a military elector. If a certificate envelope that is returned by a military elector after the polls close but before the deadline for the return of such ballots has an illegible postmark, or no postmark, it is presumed that the envelope was timely mailed, unless established otherwise.

The substitute amendment directs the municipal clerk to post in his or her office on election night and on an internet site a statement announcing the number of absentee ballots that have not been returned by military electors by the closing of the polls. However, the posting may not include the names or addresses of any military electors.

Under the substitute amendment, if a recount petition is filed, the municipal clerk or board of election commissioners must immediately notify the appropriate board of canvassers as to the number of absentee ballots that were timely received after the polls closed and whether any absentee ballots that were sent to military electors have not been returned. If there are unreturned ballots at the time a recount petition has been filed, the substitute amendment provides that the recount may not proceed until all timely returned ballots are delivered by the clerk or 9 a.m. on the day following the last day for filing a recount petition, whichever occurs first. As soon as practicable after receiving the last late-arriving ballot but in no case later than 9 a.m. on the day following the last day for filing a recount petition, the municipal clerk or board of election commissioners must transmit to the appropriate board of canvassers all of the late-arriving ballots of military electors received by the clerk or board.

This substitute amendment provides that when the board of canvassers conducting a recount receives late-arriving absentee ballots cast by military electors, the board must first open and record the names of the military electors whose ballots have been received. If the late-arriving ballot cast by a military elector is otherwise valid, the board of canvassers must count the ballot and adjust the original statements, certifications, and determinations. After doing so, the board of canvassers may begin the recount.

For further information see the local fiscal estimate, which will be printed as an appendix to this bill.

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

AB377-SSA1, s. 1 Section 1. 6.22 (4) of the statutes is renumbered 6.22 (4) (a) and amended to read:

AB377-SSA1,2,5 6.22 (4) (a) An individual who qualifies as a military elector may request an absentee ballot for any election, or for all elections until the individual otherwise requests or until the individual no longer qualifies as a military elector.

AB377-SSA1,3,5 (b) A military elector's application may be received at any time. The municipal clerk shall not send a ballot for an election if the application is received later than 5 p.m. on the Friday preceding that election unless s. 6.87 (3) (d) applies. The municipal clerk shall send a ballot, as soon as available, to each military elector who requests a ballot.

AB377-SSA1,3,13 (d) The board shall prescribe the instructions for marking and returning ballots and the municipal clerk shall enclose instructions with each ballot and shall also enclose supplemental instructions for local elections. The envelope, return envelope and instructions may not contain the name of any candidate appearing on the enclosed ballots other than that of the municipal clerk affixed in the fulfillment of his or her duties. Each certificate envelope that is mailed or transmitted to a military elector under this section shall be clearly labeled as "Cast by a military elector under s. 6.22, Wis. stats., and may be eligible to be counted after election day".

AB377-SSA1,3,16 (e) Whenever the material is mailed, the material shall be prepared and mailed to make use of the federal free postage laws. The mailing list established under this subsection shall be kept current in the same manner as provided in s. 6.86 (2) (b).

AB377-SSA1, s. 2 Section 2. 6.22 (5) of the statutes is amended to read:

AB377-SSA1,3,23 6.22 (5) Voting procedure. Except as authorized in sub. (5m) and s. 6.25, the ballot shall be marked and returned, deposited and recorded in the same manner as other absentee ballots. In addition, the certification under s. 6.87 (2) shall have a statement of the elector's birth date. Failure to return any unused ballots in a primary election does not invalidate the ballot on which the elector casts his or her votes.

AB377-SSA1, s. 3 Section 3. 6.22 (5m) of the statutes is created to read:

AB377-SSA1,4,7 6.22 (5m) Treatment of ballots received after close of polls. (a) A vote cast on a ballot cast under this section that is received by the municipal clerk after the close of the polls but before the deadline for filing a petition for a recount under s. 9.01 (1) (a) for the office for which the vote is cast shall be treated as valid if the envelope in which the ballot was received bears a postal service cancellation mark dated on or before the election day for which the ballot was cast, but may only be counted for purposes of a recount under s. 9.01.

AB377-SSA1,4,13 (b) For purposes of par. (a), if a certificate envelope is not postmarked or has a postmark that is not legible to the municipal clerk, board of canvassers, or the board of absentee ballot canvassers in municipalities where absentee ballots are canvassed under s. 7.52, and the envelope was received by mail from the U.S. postal service, it is presumed that the envelope was placed in the mail on or before election day, unless established by a preponderance of the evidence to the contrary.

AB377-SSA1,4,20 (c) No later than the closing hour of the polls, the municipal clerk of each municipality shall post at his or her office, at any alternate site under s. 6.855, and on the Internet at a site announced by the clerk before the polls open, and shall make available to any person upon request, a statement of the number of absentee ballots that the clerk has mailed or transmitted to military electors under this section and that have not been returned by the closing hour on election day. The posting shall not include the names or addresses of any military electors.

AB377-SSA1,5,2 (d) All ballots received by the municipal clerk under this subsection by the deadline specified in par. (a) shall be carefully preserved by the municipal clerk until destruction or other disposition is authorized under s. 7.23. If a petition for a recount is filed under s. 9.01, the clerk shall immediately notify the appropriate board of canvassers as to whether any absentee ballots that have been mailed or transmitted to military electors under this section have been received after the closing of the polls or have not been returned.

AB377-SSA1,5,8 (dm) If the clerk notifies the board of canvassers that any ballots that have been mailed or transmitted to military electors under this section have not been returned, the board of canvassers shall not proceed with the recount until all such ballots have been returned to the clerk and transmitted to the board of canvassers, or 9 a.m. on the day following the last day for filing of a petition for the recount, whichever occurs first.

AB377-SSA1,5,12 (e) The clerk shall transmit to the appropriate board of canvassers all ballots received under par. (a) by the clerk as soon as practicable after receiving the last ballot but in no case later than 9 a.m. on the day following the last day for filing a petition for the recount under s. 9.01.

AB377-SSA1,5,18 (f) Whenever a board of canvassers conducting a recount receives absentee ballots cast by military electors as provided in par. (e), the board of canvassers shall first proceed to open and record the names of the military electors whose ballots have been received. If the ballot cast by a military elector is otherwise valid, the board of canvassers shall count the vote cast on the ballot for the office being recounted and shall adjust the original statements, certifications, and determinations accordingly.

AB377-SSA1,5,20 (g) The board of canvassers shall then proceed with the recount under s. 9.01 (1) (b).

AB377-SSA1, s. 4 Section 4. 6.87 (6) of the statutes is amended to read:

AB377-SSA1,5,25 6.87 (6) The Except as provided in s. 6.22 (5m), the ballot shall be returned so it is received by the municipal clerk in time for delivery to the polls before the closing hour. Any Except as provided in s. 6.22 (5m), any ballot not mailed or delivered as provided in this subsection may not be counted.

AB377-SSA1, s. 5 Section 5. 9.01 (1) (b) (intro.) of the statutes is amended to read:

AB377-SSA1,6,11 9.01 (1) (b) (intro.) The Except as provided in this paragraph, the proper board of canvassers shall reconvene no earlier than 9 a.m. on the day following delivery of notice to all candidates under sub. (2) and no later than 9 a.m. on the day following the last day for filing of a petition and proceed to recount the ballots in the wards or municipalities specified and to review the allegations of fact contained in the petition or petitions. If s. 6.22 (5m) (dm) applies, the board of canvassers shall not proceed with the recount until 9 a.m. on the day following the last day for filing of a petition and, if s. 6.22 (5m) (e) applies, shall not proceed with the recount until it complies with s. 6.22 (5m) (f). The recount shall proceed for each ward or municipality as follows:

AB377-SSA1, s. 6 Section 6. Effective date.

AB377-SSA1,6,14 (1) This act takes effect on July 1, 2006, or on the day after publication, whichever is later.

AB377-SSA1,6,15 (End)