Amendment ASA3-SB1

Under current law, if a court finds that any provision of a legislative act is unconstitutional and there are other provisions that are not dependent for their operation upon the unconstitutional provision, the other provisions remain valid. This substitute amendment provides that if a court finds that any provision of the act resulting from the substitute amendment is unconstitutional, the entire act is void.

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

SB1-ASA3, s. 1 Section 1. 5.02 (1s) of the statutes is amended to read:

SB1-ASA3,7,3 5.02 (1s) "Board" means the elections government accountability and integrity board.

SB1-ASA3, s. 2 Section 2. 5.05 (title) of the statutes is amended to read:

SB1-ASA3,7,6 5.05 (title) Elections Government accountability and integrity board; powers and duties.

SB1-ASA3, s. 3 Section 3. 5.05 (1) (intro.) of the statutes is amended to read:

SB1-ASA3,7,11 5.05 (1) General authority. (intro.) The elections government accountability and integrity board shall have the responsibility for the administration of chs. 5 to 12 and other laws relating to elections and election campaigns. Pursuant to such responsibility, the board may:

SB1-ASA3, s. 4 Section 4. 5.05 (1) (a) of the statutes is repealed.

SB1-ASA3, s. 5 Section 5. 5.05 (1) (b) of the statutes is amended to read:

SB1-ASA3,8,7 5.05 (1) (b) In the discharge of its duties and upon after providing notice to the any party or parties being investigated who is the subject of an investigation, subpoena and bring before it any person in the state and require the production of any papers, books, or other records relevant to an investigation. A circuit court may by order permit the inspection, and copying of the accounts and the depositor's and loan records at any financial institution, as defined in s. 705.01 (3), doing business in the state to obtain evidence of any violation of ch. 11 upon showing by the board of probable cause to believe there is a violation and that such accounts and records may have a substantial relation to the violation. In the discharge of its duties, the board may cause the deposition of witnesses to be taken in the manner prescribed for taking depositions in civil actions in circuit court.

SB1-ASA3, s. 6 Section 6. 5.05 (1) (c) of the statutes is amended to read:

SB1-ASA3,9,7 5.05 (1) (c) Bring civil or criminal actions to require forfeitures for any violation of ch. 11 under s. 11.60. Forfeiture actions brought by the board may concern only violations with respect to reports or statements required by law to be filed with it, and other violations arising under elections for state office or statewide referenda chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19. The board may compromise and settle any civil action or potential action brought or authorized to be brought by it under ch.11 which, in the opinion of the board, constitutes a minor violation, a violation caused by excusable neglect, or which for other good cause shown, should not in the public interest be prosecuted under such chapter. Notwithstanding s. 778.06, an action or proposed action authorized under this paragraph may be settled for such sum as may be agreed between the parties. Any settlement made by the board shall be in such amount as to deprive the alleged violator of any benefit of his or her wrongdoing and may contain a penal component to serve as a deterrent to future violations. In settling actions or proposed actions, the board shall treat comparable situations in a comparable manner and shall assure that any settlement bears a reasonable relationship to the severity of the offense or alleged offense. Forfeiture actions brought by the board shall be brought in the circuit court for the county wherein the violation is alleged to occur. Whenever the board enters into a settlement agreement with an individual who is accused of a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 or who is investigated by the board for a possible violation of one of those provisions, the board shall reduce the agreement to writing, together with a statement of the board's findings and reasons for entering into the agreement and shall retain the agreement and statement in its office for inspection.

SB1-ASA3, s. 7 Section 7. 5.05 (1) (e) of the statutes is amended to read:

SB1-ASA3,9,17 5.05 (1) (e) Delegate to its executive director the authority to issue a subpoena under par. (b), apply for a search warrant under par. (b), commence an action under par. (d), intervene in an action or proceeding under sub. (9), issue an order under s. 5.06, exempt a polling place from accessibility requirements under s. 5.25 (4) (a), exempt a municipality from the requirement to use voting machines or an electronic voting system under s. 5.40 (5m), approve an electronic data recording system for maintaining poll lists under s. 6.79, or authorize nonappointment of an individual who is nominated to serve as an election official under s. 7.30 (4) (e), subject to such limitations as the board deems appropriate.

SB1-ASA3, s. 8 Section 8. 5.05 (1e) of the statutes is created to read:

SB1-ASA3,9,20 5.05 (1e) Actions by the board. Any action by the board requires the affirmative vote of at least 4 members.

SB1-ASA3, s. 9 Section 9. 5.05 (1m) of the statutes is created to read:

SB1-ASA3,9,24 5.05 (1m) Executive director; legal counsel. The board shall employ an executive director outside the classified service and shall employ legal counsel to perform legal services outside the enforcement division.

SB1-ASA3, s. 10 Section 10. 5.05 (2m) of the statutes is created to read:

SB1-ASA3,10,4 5.05 (2m) Enforcement division. (a) The enforcement division, under the direction and supervision of the board, shall investigate and prosecute alleged violations of laws administered by the board pursuant to all statutes granting or assigning that authority or responsibility to the board.

SB1-ASA3,10,6 (c) 1. The board shall employ at least one full-time attorney and at least one full-time investigator within the enforcement division.

SB1-ASA3,10,19 2. a. Any person may file a complaint with the enforcement division alleging a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19. The division may, on its own motion or upon direction of the board, investigate any potential violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 whenever the division has a reasonable suspicion that a violation has occurred or is occurring. If the enforcement division finds, by a preponderance of the evidence, that a complaint filed with the division is frivolous, the division may order the complainant to forfeit not more than the greater of $500 or the expenses incurred by the division in investigating the complaint. The enforcement division may, in accordance with this paragraph, investigate or prosecute any civil or criminal violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 in the name of the board. Only the enforcement division may investigate or prosecute civil or criminal violations of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19.

SB1-ASA3,11,21 4. The administrator of the enforcement division shall make an initial determination as to whether there is a reasonable suspicion that a violation under subd. 2. has occurred or is occurring and whether an investigation of the suspected violation is appropriate. The administrator shall notify the board within 10 days of opening an investigation of any matter. If, within 10 days of receiving notification, any member of the board requests the chairperson to call a meeting of the board be held to discuss the investigation, and the member requests that the investigation be suspended until the meeting is held, the administrator shall suspend the investigation until the board directs the investigation to proceed. The chairperson of the board shall thereupon call a meeting of the board to discuss the investigation. If an investigation is suspended, the meeting shall be held within 10 working days, as defined in s. 227.01 (14), of receiving the request. If the board believes that there is reasonable suspicion that a violation under subd. 2. has occurred or is occurring, the board may elect to proceed with the investigation and may, in addition, elect to retain an investigator. If the board elects to retain an investigator, the administrator shall submit to the board the names of 3 qualified individuals to serve as an investigator. The board may retain one or more of the investigators. Each investigator who is retained by the board shall make periodic reports to the board, as directed by the board, but in no case may the interval for reporting exceed 90 days. If the board authorizes the administrator to investigate any matter without retaining an investigator, the administrator shall make periodic reports to the board, as directed by the board, but in no case may the reporting interval exceed 90 days. If, after receiving a report, the board does not vote to continue an investigation for an additional period not exceeding 90 days, the investigation is terminated at the end of the reporting interval. Unless an investigation is terminated by the board, at the conclusion of each investigation, the administrator of the enforcement division shall present to the board one of the following:

SB1-ASA3,11,24 a. A recommendation to make a finding that probable cause exists to believe that one or more violations under subd. 2. have occurred or are occurring, together with a recommended course of action.

SB1-ASA3,12,2 b. A recommendation for further investigation of the matter together with facts supporting that course of action.

SB1-ASA3,12,4 c. A recommendation to terminate the investigation due to lack of sufficient evidence to indicate that a violation under subd. 2 has occurred or is occurring.

SB1-ASA3,12,14 5. The enforcement division may file a complaint against any person only upon authorization by the board. The enforcement division may request the assistance of special counsel to prosecute any action brought by the board. If the enforcement division requests the assistance of special counsel with respect to any matter, the administrator of the enforcement division shall submit to the board the names of 3 qualified individuals to serve as special counsel. Any individual so appointed shall meet the qualifications prescribed in subd. 7. The board may retain one of the individuals to act as special counsel. The staff of the enforcement division shall provide assistance to the special counsel as may be required by the counsel to carry out his or her responsibilities.

SB1-ASA3,12,19 6. Upon employment of any individual to serve as special counsel for the enforcement division, the administrator of the enforcement division shall certify the maximum amount provided in the employment contract to the secretary of administration, and direct the department of administration to pay special counsel bills related to that case within the certified amount.

SB1-ASA3,12,24 7. Any individual who is appointed by the board to serve as special counsel shall be a retired judge of a court of record in this state or an attorney who, at the time of appointment, has senior status as a member of the state bar of Wisconsin, as defined by the supreme court. No individual who is appointed or retained by the board to serve as special counsel or as an investigator is subject to approval under s. 20.930.

SB1-ASA3,13,6 8. Whenever the board authorizes commencement of a prosecution and the prosecution is not concluded in circuit court or settled within 6 months of the date of the board's action, the administrator of the enforcement division or any special counsel who is retained to conduct the prosecution shall not proceed with the prosecution or shall move to dismiss the prosecution unless the board authorizes the prosecution to proceed for an additional period, not to exceed 6 months.

SB1-ASA3,13,12 9. The board may, by rule, prescribe categories of civil offenses which the board will agree to compromise and settle without a formal investigation upon payment of specified amounts by the alleged offender. The board may authorize the administrator of the enforcement division to compromise and settle such alleged offenses in the name of the board if the alleged offenses by an offender, in the aggregate, do not involve payment of more than $500.

SB1-ASA3,13,19 (d) No individual who serves as an employee in the enforcement division and no individual who is retained by the board to serve as an investigator or as special counsel may, while so employed or retained or for 12 months after ceasing to be so employed or retained, become a candidate, as defined in s. 11.01 (1), for state or local office. A filing officer shall decline to accept nomination papers or a declaration of candidacy from any individual who does not qualify to become a candidate under this paragraph.

SB1-ASA3, s. 11 Section 11. 5.05 (3) of the statutes is repealed.

SB1-ASA3, s. 12 Section 12. 5.05 (3g) of the statutes is created to read:

SB1-ASA3,13,23 5.05 (3g) Chief election officer. The board shall designate an employee of the board to serve as the chief election officer of this state.

SB1-ASA3, s. 13 Section 13. 5.05 (5) of the statutes is repealed.

SB1-ASA3, s. 14 Section 14. 5.05 (5s) (title), (d) and (e) of the statutes are created to read:

SB1-ASA3,14,7 5.05 (5s) (title) Access to records. (d) If the board commences a prosecution of a person for an alleged violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 as the result of an investigation, the person who is the subject of the investigation may authorize the board to make available for inspection and copying under s. 19.35 (1) records of the investigation pertaining to that person if the records are available by law to the subject person and the board shall then make those records available.

SB1-ASA3,14,9 (e) The following records of the board are open to public inspection and copying under s. 19.35 (1):

SB1-ASA3,14,11 1. Any record containing a finding that a complaint does not raise a reasonable suspicion that a violation of the law has occurred.

SB1-ASA3,14,13 2. Any record containing a finding, following an investigation, that no probable cause exists to believe that a violation of the law has occurred.

SB1-ASA3, s. 15 Section 15. 5.05 (6) of the statutes is repealed.

SB1-ASA3, s. 16 Section 16. 5.05 (11) of the statutes is repealed.

SB1-ASA3, s. 17 Section 17. 5.052 of the statutes is created to read:

SB1-ASA3,14,20 5.052 Government accountability and integrity candidate committee. (1) The government accountability and integrity candidate committee shall organize whenever a vacancy occurs in the membership of the board that requires a nomination to be submitted to the governor under s. 15.60 (2).

SB1-ASA3,14,22 (2) No person may be nominated by the committee unless the person receives the unanimous approval of the committee.

SB1-ASA3,14,24 (3) Except as provided in sub. (4), the committee shall submit the following number of nominations:

SB1-ASA3,15,2 (a) To fill any vacancy if the member must be a retired judge of a court of record in this state, 2 nominations.

SB1-ASA3,15,4 (b) To fill one vacancy if the member must be a former elective official of a local governmental unit, 2 nominations.

SB1-ASA3,15,6 (c) To fill 2 vacancies, if both members must be former elective officials of local governmental units in this state, 3 nominations.

SB1-ASA3,15,7 (d) To fill one vacancy in any other position, 2 nominations.

SB1-ASA3,15,8 (e) To fill 2 vacancies in any other positions, 3 nominations.

SB1-ASA3,15,9 (f) To fill 3 vacancies in any other positions, 5 nominations.

SB1-ASA3,15,10 (g) To fill 4 vacancies in any other positions, 6 nominations.

SB1-ASA3,15,13 (4) If a nomination of the governor is rejected by the assembly or the senate, the committee shall submit an additional nominee to the governor from the same membership category as the original nominee.

SB1-ASA3, s. 18 Section 18. 5.054 of the statutes is created to read:

SB1-ASA3,15,16 5.054 Duties of the executive director. The executive director of the board shall:

SB1-ASA3,15,22 (1) Assign work to the employees of the board as good management practices and the workload of the board require without respect to divisional structure, except that the executive director shall not reassign the administrator of the enforcement division or the attorney or investigator whose employment is required under s. 5.05 (2m) (c) 1. to perform work outside the enforcement division if the enforcement division has work to be performed.

SB1-ASA3,15,24 (2) Whenever a vacancy occurs on the board, call a meeting of the government accountability and integrity candidate committee.

SB1-ASA3,16,2 (3) Assist the government accountability and integrity candidate committee in the performance of its functions.

SB1-ASA3, s. 19 Section 19. 5.06 (2) of the statutes is amended to read:

SB1-ASA3,16,11 5.06 (2) No person who is authorized to file a complaint under sub. (1), other than the attorney general or a district attorney, may commence an action or proceeding to test the validity of any decision, action or failure to act on the part of any election official with respect to any matter specified in sub. (1) without first filing a complaint under sub. (1), nor prior to disposition of the complaint by the board. A complaint is deemed disposed of if the board fails to transmit an acknowledgment of receipt of the complaint within 5 business days from the date of its receipt or if the board concludes its investigation without a formal decision.

SB1-ASA3, s. 20 Section 20. 5.07 of the statutes is repealed.

SB1-ASA3, s. 21 Section 21. 5.08 of the statutes is repealed.

SB1-ASA3, s. 22 Section 22. 5.081 of the statutes is amended to read:

SB1-ASA3,16,20 5.081 Petition for enforcement of voting rights. The attorney general board shall accept a verified petition from any person alleging failure to comply with section 2 of the federal voting rights act, 42 USC 1973 (a) and (b). The attorney general board may commence an action or proceeding in any court of competent jurisdiction on behalf of any elector of this state whose rights under 42 USC 1973 (a) and (b) are violated.

SB1-ASA3, s. 23 Section 23. 5.40 (7) of the statutes is amended to read:

SB1-ASA3,17,3 5.40 (7) Whenever a municipality adopts and purchases voting machines or an electronic voting system, or adopts and purchases a different type of voting machine or electronic voting system from the type it was previously using, the municipal clerk or executive director of the municipal board of election commissioners shall promptly notify the county clerk or executive director of the county board of election commissioners and the executive director of the elections government accountability and integrity board in writing.

SB1-ASA3, s. 24 Section 24. 5.62 (4) (b) of the statutes is amended to read:

SB1-ASA3,17,9 5.62 (4) (b) The county board of election commissioners in counties having a population of more than 500,000 shall prepare the official primary ballot. The commissioners shall arrange the names of all candidates for each office whose nomination papers are filed at the county level, using the same method as that used by the elections government accountability and integrity board under s. 5.60 (1) (b).

SB1-ASA3, s. 25 Section 25. 6.26 (2) (b) of the statutes is amended to read:

SB1-ASA3,17,17 6.26 (2) (b) The municipal clerk, board of election commissioners, or elections government accountability and integrity board may appoint any applicant who qualifies under this subsection, unless the applicant's appointment has been revoked by a municipality or by the board for cause. The municipal clerk, board of election commissioners, or elections government accountability and integrity board may revoke an appointment made by the clerk, board of election commissioners, or elections government accountability and integrity board for cause at any time.

SB1-ASA3, s. 26 Section 26. 6.26 (2) (c) of the statutes is amended to read:

SB1-ASA3,17,22 6.26 (2) (c) No individual may serve as a special registration deputy in a municipality unless the individual is appointed by the municipal clerk or board of election commissioners of the municipality or the individual is appointed by the elections government accountability and integrity board to serve all municipalities.

SB1-ASA3, s. 27 Section 27. 6.56 (2) to (5) of the statutes are amended to read:

SB1-ASA3,18,10 6.56 (2) Upon receipt of the list, the municipal clerk shall make a check to determine whether each person who has been allowed to vote under s. 6.55 (3) is properly registered. If so, the clerk shall correct the registration list. If the address on the registration list is not correct, the clerk shall correct the address. The clerk shall then notify the elector by postcard when he or she is properly registered. If such person is found not to be properly registered, the clerk shall send the person a 1st class letter with that information, containing a mail registration form under s. 6.30 (4). The letter shall be marked in accordance with postal regulations to ensure that it will be returned to the clerk if the elector does not reside at the address given on the postcard. If such letter is returned undelivered, or if the U.S. postal service notifies the clerk of an improper address which was apparently improper on the day of the election, the clerk shall notify the district attorney board.

SB1-ASA3,18,24 (3) Upon receipt of the list under sub. (1), the municipal clerk or board of election commissioners shall make an audit of all electors registering to vote at the polling place or other registration location under s. 6.55 (2) and all electors registering by agent on election day under s. 6.86 (3) (a) 2. The audit shall be made by 1st class postcard. The postcard shall be marked in accordance with postal regulations to ensure that it will be returned to the clerk or board of election commissioners if the elector does not reside at the address given on the postcard. If any postcard is returned undelivered, or if the clerk or board of election commissioners is informed of a different address than the one specified by the elector which was apparently improper on the day of the election, the clerk or board of election commissioners shall change the status of the elector from eligible to ineligible on the registration list and mail the elector a notice of the change in status and provide the name to the district attorney for the county where the polling place is located board.

SB1-ASA3,19,10 (4) After each election, the municipal clerk shall carefully check to assure that no person has been allowed to vote more than once. Whenever the municipal clerk has good reason to believe that a person has voted more than once in an election, the clerk shall send the person a 1st class letter marked in accordance with postal regulations to ensure that it will be returned to the clerk if the elector does not reside at the address given on the letter. The letter shall inform the person that all registrations relating to that person may be changed from eligible to ineligible status within 7 days unless the person contacts the office of the clerk to clarify the matter. A copy of the letter and of any subsequent information received from or about the addressee shall be sent to the district attorney board.

SB1-ASA3,19,17 (5) Whenever any letter or postcard mailed under this section is returned undelivered, or whenever the U.S. postal service notifies the clerk of an improper address which was apparently improper on the day of the election or whenever it otherwise appears that a person has voted who is not qualified or has voted more than once in an election, and the person has been permitted to vote after corroboration was made under s. 6.55 (2) or (3) or 6.86 (3) (a) 2., the name of the corroborator shall also be provided to the district attorney board.

SB1-ASA3, s. 28 Section 28. 7.08 (title) of the statutes is amended to read:

SB1-ASA3,19,19 7.08 (title) Elections Government accountability and integrity board.

SB1-ASA3, s. 29 Section 29. 7.08 (7) of the statutes is repealed.

SB1-ASA3, s. 30 Section 30. 7.15 (1) (g) of the statutes is amended to read:

SB1-ASA3,19,23 7.15 (1) (g) Report suspected election frauds, irregularities or violations of which the clerk has knowledge to the district attorney board.

SB1-ASA3, s. 31 Section 31. 7.21 (2m) of the statutes is repealed.

SB1-ASA3, s. 32 Section 32. 7.23 (2) of the statutes is amended to read:

SB1-ASA3,20,13 7.23 (2) If there is a demand for a recount, notice of an election contest or any contest or litigation pending with respect to an election, materials may be destroyed and recorders, units or compartments may be cleared or erased only by order of the judge in whose court litigation is pending or if no litigation is pending, by order of any circuit judge for the affected jurisdiction. Upon petition of the attorney general or a district attorney or board or the U.S. attorney for the affected jurisdiction, a circuit judge for the affected jurisdiction may order that specified materials not be destroyed or that specified recorders, units or compartments not be cleared or erased as otherwise authorized under this subsection until the court so permits. The governor may by order permit the clearing of voting machine recorders on machines needed to conduct a special election prior to the time authorized under this subsection, unless there is a demand for recount, notice of an election contest or a contest or litigation pending, or a court of record orders that the recorders not be cleared.