AB746: Bill Text

2011 - 2012 LEGISLATURE

2011 Assembly BILL 746

March 15, 2012 - Introduced by Representative Roys. Referred to Committee on Election and Campaign Reform.

AB746,2,6 An Act to repeal 5.02 (24r), 5.37, 5.40 (3) (b), 5.40 (4), 5.40 (5), 5.53, 5.77 (2), 5.90 (2) and (3), 5.91 (18), 6.82 (3), 7.25, 7.50 (2) (hm), 7.51 (2) (g) and (h), 7.51 (3) (c), 9.01 (1) (b) 6. to 8., 10.07 (2) and 12.13 (3) (y); to renumber and amend 5.77 (1), 5.90 (1) and 10.07 (1); to amend 5.02 (1c), 5.02 (1e), 5.02 (4m), 5.02 (24g), 5.05 (1) (e), 5.05 (14), 5.15 (6) (b), 5.35 (4), 5.40 (title), 5.40 (1), 5.40 (2), 5.40 (3) (intro.), 5.40 (5m), 5.40 (6), 5.40 (7), 5.51 (6), 5.54, 5.55, 5.56, 5.62 (1) (a), 5.655 (1), 5.66, 5.68 (1), 5.68 (3), 5.72 (1), 5.76, 5.78, 5.81 (1), 5.81 (3), 5.85 (2) (a), 5.85 (5), 5.91 (6), 5.91 (7), 5.91 (9), 5.94, 6.15 (3), 6.80 (1), 6.80 (2) (a), 6.80 (2) (am), 6.80 (2) (f), 6.80 (3) (title), 6.80 (3) (b), 6.82 (2) (a) and (b), 6.96, 6.965, 6.97 (1), 7.03 (1) (a) and (d), 7.08 (1) (d), 7.10 (6), 7.15 (2) (c), 7.15 (3), 7.15 (6), 7.23 (1) (h), 7.23 (2), 7.30 (1) (a), 7.37 (4), 7.41 (5), 7.51 (2) (a), 7.51 (6), 8.50 (3) (c), 8.55 (4), 9.01 (1) (a) 1., 9.01 (1) (a) 2. a., 9.01 (1) (ag) 1., 1m. and 2., 9.01 (1) (b) 8m. and 8s., 9.01 (1) (b) 10., 9.01 (2), 9.01 (3), 9.01 (4), 9.01 (6) (a), 9.01 (7) (a), 10.01 (2) (b), 10.02 (2) (c), 10.02 (3) (a), 10.02 (3) (b) 1., 10.02 (3) (b) 2., 10.02 (3) (b) 3. and 4., 10.02 (3) (c), 10.02 (3) (d), 10.02 (3) (e), 10.02 (3) (f), 10.06 (3) (am) and (bm), 10.06 (3) (e), 12.13 (2) (b) 6., 12.13 (3) (f), 12.13 (3) (j), 12.60 (1) (a), 67.05 (3) (a) 7. and 120.06 (11); and to create 5.91 (19) and 7.41 (4m) of the statutes; relating to: discontinuance of the use of voting machines, recounts of machine-readable ballots, petitions for recounts, inspection of areas where voted ballots are stored, and destruction of ballots after an election.

Analysis by the Legislative Reference Bureau

This bill makes various changes in election laws relating to the discontinuance of the use of voting machines, recounts of machine-readable ballots, petitions for recounts, the inspection of areas where voted ballots are stored, and the destruction of ballots after an election.

Discontinuance of the use of voting machines

Currently, with limited exceptions, every municipality with a population of 7,500 or more must use voting machines or an electronic voting system at all primaries and other elections held in the municipality. Either mechanical or electronic voting machines may be used. No electronic voting system, including an electronic voting machine, may be used unless the system meets statutory standards and is approved by the Government Accountability Board for use at elections held in this state. All voting machines must be tested before each election to determine if they are functioning properly. If voting machines are used, ballots need not be printed and distributed to electors, but if electronic voting machines are used, the machines must maintain a cumulative tally of votes cast that is retrievable in the event of a power outage, evacuation, or malfunction so that the record of the votes cast prior to the time that the problem occurs is preserved. This bill discontinues the authorization for municipalities to use mechanical or electronic voting machines at elections held in this state. Under the bill, if an electronic voting system is used, the system must be of a type in which printed ballots are distributed to electors.

Recounts of machine-readable ballots

Currently, with a limited exception, a board of canvassers must use automatic tabulating equipment to conduct a recount of ballots that are in machine-readable form. However, a candidate, or an elector if the recount is for a referendum question, may petition the circuit court for an order requiring ballots in machine-readable form to be recounted by hand or by another method approved by the court. To obtain such an order, the candidate or elector must show by clear and convincing evidence that due to an irregularity or mistake committed during the voting or canvassing process the results of a recount using automatic tabulating equipment will produce incorrect results and there is a substantial probability that recounting the ballots by hand or by another method will produce a more correct result and change the outcome of the election. This bill provides instead that the elector who petitions for a recount, a candidate at the election, or an elector who voted in a referendum that is the subject of a recount may file a written demand for the board of canvassers to recount the ballots in an election, or the ballots from a specified ward or polling place, by hand, in which case the board of canvassers must recount those ballots by hand.

Petitions for recounts

Currently, any candidate voted for at an election may petition for a recount of the votes cast at the election. If the difference between the votes cast for the leading candidate and the candidate receiving the next highest number of votes is less than ten if 1,000 or less votes are cast or not more than 0.5 percent if more than 1,000 votes are cast, the cost of the recount is paid by the local government or governments where the votes are cast. If the difference in the numbers of votes cast exceeds that level, the petitioner must may a fee that depends upon the difference in the numbers of votes cast. This bill permits any elector who voted in an election for an office to petition for a recount of the votes cast at the election. Under the bill, the petitioner must pay a fee equal to the actual cost of performing the recount.

Destruction of ballots after an election

Currently, ballots at an election may be destroyed no earlier than 30 days after the election except that: 1) ballots at a federal election must be retained until 22 months after that election; 2) if a recount or appeal of a recount is pending or if the time for petitioning for a recount or review of a recount determination has not expired on the 30th day after an election, ballots must be retained until the recount or appeal is finally adjudicated; and 3) a court may order the retention of ballots for a longer period. This bill provides that ballots at an election must be retained until 14 days before the next regularly scheduled election but in no case earlier than 30 days after an election.

Inspection of areas where voted ballots are stored

This bill permits any individual, with reasonable prior notice to a municipal clerk or board of election commissioners, to inspect an area in which ballots relating to an election are stored after the election. The bill does not permit an individual to inspect ballots or to require the breaking of seals on ballot bags or containers.

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:

AB746, s. 1 Section 1. 5.02 (1c) of the statutes is amended to read:

AB746,4,3 5.02 (1c) "Automatic tabulating equipment" means apparatus which automatically examines and counts votes recorded on ballots or voting machines and tabulates the results.

AB746, s. 2 Section 2. 5.02 (1e) of the statutes is amended to read:

AB746,4,8 5.02 (1e) "Ballot" means a ballot label, sheet of paper or envelope on which votes are recorded. The term also includes a sheet or card, filmstrip or other device listing or containing information relative to offices, candidates and referenda which is placed, projected or composed on the board or screen inside a voting machine.

AB746, s. 3 Section 3. 5.02 (4m) of the statutes is amended to read:

AB746,4,13 5.02 (4m) "Electronic voting system" means a system in which votes are recorded on ballots, and the votes are subsequently counted and tabulated by automatic tabulating equipment. The term also includes a voting machine on which votes are recorded and tabulated by electronic means.

AB746, s. 4 Section 4. 5.02 (24g) of the statutes is amended to read:

AB746,4,16 5.02 (24g) "Voting device" means an apparatus other than a voting machine which the elector uses to record his or her votes on a ballot.

AB746, s. 5 Section 5. 5.02 (24r) of the statutes is repealed.

AB746, s. 6 Section 6. 5.05 (1) (e) of the statutes is amended to read:

AB746,5,2 5.05 (1) (e) Delegate to its legal counsel the authority to intervene in a civil 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.

AB746, s. 7 Section 7. 5.05 (14) of the statutes is amended to read:

AB746,5,7 5.05 (14) Information from county and municipal clerks. The board may request information from county and municipal clerks relating to election administration, performance of electronic voting systems and voting machines, and use of paper ballots in elections.

AB746, s. 8 Section 8. 5.15 (6) (b) of the statutes, as affected by 2011 Wisconsin Act 75, is amended to read:

AB746,5,25 5.15 (6) (b) No later than 30 days before each election, the governing body of any municipality may by resolution combine 2 or more wards for voting purposes to facilitate using a common polling place. Whenever wards are so combined, the original ward numbers shall continue to be utilized for all official purposes. Except as otherwise authorized under this paragraph, every municipality having a population of 35,000 or more shall maintain separate returns for each ward so combined. In municipalities having a population of less than 35,000, the governing body may provide in the resolution that returns shall be maintained only for each group of combined wards at any election. Whenever a governing body provides for common ballot boxes and ballots or voting machines, separate returns shall be maintained for each separate ballot required under ss. 5.62 and 5.64 at the partisan primary and general election. The municipal clerk shall transmit a copy of the resolution to the county clerk of each county in which the municipality is contained. In municipalities having a population of less than 35,000, the resolution shall remain in effect for each election until modified or rescinded, or until a new division is made under this section.

AB746, s. 9 Section 9. 5.35 (4) of the statutes is amended to read:

AB746,6,8 5.35 (4) Layout; organization. All voting booths and machines shall be placed apart from other activities in the polling place, with their exteriors in full view of the election officials. Only the proper election officials, persons observing the proceedings under s. 7.41, persons assisting voters under s. 6.82 (2) and electors receiving, preparing or depositing their ballots or casting their votes on the machines are permitted in the voting area. Except where assistance is authorized, only one elector at a time is permitted in a voting booth or machine.

AB746, s. 10 Section 10. 5.37 of the statutes, as affected by 2011 Wisconsin Acts 23 and 32, is repealed.

AB746, s. 11 Section 11. 5.40 (title) of the statutes is amended to read:

AB746,6,12 5.40 (title) Use of voting machines or systems.

AB746, s. 12 Section 12. 5.40 (1) of the statutes is amended to read:

AB746,6,20 5.40 (1) Except as permitted in sub. (3) or as required in subs. (4) to (5m) and (6), the governing body or board of election commissioners of every municipality with a population of 10,000 or more before July 1, 1995, or of 7,500 or more thereafter shall require the use of voting machines or electronic voting systems in every ward in the municipality at every election. Any other governing body or board of election commissioners may adopt and purchase voting machines or electronic voting systems for use in any ward in the municipality at any election.

AB746, s. 13 Section 13. 5.40 (2) of the statutes is amended to read:

AB746,6,23 5.40 (2) Only voting machines complying with s. 5.37 or electronic voting systems approved under s. 5.91 may be used in an election in this state.

AB746, s. 14 Section 14. 5.40 (3) (intro.) of the statutes is amended to read:

AB746,7,3 5.40 (3) (intro.) Notwithstanding sub. (1), any municipality may elect to utilize paper ballots and voting booths instead of voting machines or an electronic voting system:

AB746, s. 15 Section 15. 5.40 (3) (b) of the statutes is repealed.

AB746, s. 16 Section 16. 5.40 (4) of the statutes is repealed.

AB746, s. 17 Section 17. 5.40 (5) of the statutes is repealed.

AB746, s. 18 Section 18. 5.40 (5m) of the statutes is amended to read:

AB746,7,11 5.40 (5m) Notwithstanding sub. (1), the governing body of a municipality which uses voting machines or an electronic voting system may petition the board for permission to use paper ballots and voting booths for a specific election, and the board may grant such a request.

AB746, s. 19 Section 19. 5.40 (6) of the statutes is amended to read:

AB746,7,15 5.40 (6) A municipality which utilizes voting machines or an electronic voting system at a polling place may permit use of the machines or system by electors voting under s. 6.15 only as authorized under s. 6.15 (3).

AB746, s. 20 Section 20. 5.40 (7) of the statutes is amended to read:

AB746,7,22 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 administrator of the elections division of the board in writing.

AB746, s. 21 Section 21. 5.51 (6) of the statutes is amended to read:

AB746,8,2 5.51 (6) All candidates' names for the same office shall be placed, projected or composed on the ballot in the same size, style and color of type. The style and size of type shall conform substantially to the official ballot forms prescribed by the board under s. 7.08 (1) (a).

AB746, s. 22 Section 22. 5.53 of the statutes is repealed.

AB746, s. 23 Section 23. 5.54 of the statutes is amended to read:

AB746,8,8 5.54 Notice to electors. Every ballot , except a voting machine ballot, shall bear substantially the following information on the face: "Notice to electors: This ballot may be invalid unless initialed by 2 election inspectors. If cast as an absentee ballot, the ballot must bear the initials of the municipal clerk or deputy clerk."

AB746, s. 24 Section 24. 5.55 of the statutes is amended to read:

AB746,8,17 5.55 Information. On every ballot, except a voting machine ballot, shall be printed "Official .... Ballot" or "Official .... Ballot for ...." followed by the designation of the polling place for which the ballot has been prepared, the date of the election, and the official endorsement and blank certificates. The number of the ward or wards or aldermanic district, if any, and the name of the municipality may be omitted in printing and stamped or written on the ballots at any location which is clearly visible at the option of the county clerk. Printed information and initials shall appear on the back and outside of the ballot.

AB746, s. 25 Section 25. 5.56 of the statutes is amended to read:

AB746,9,6 5.56 Multiple columns and rows. Whenever the number of candidates for any office requires the use of more than one row or column on a voting machine or whenever the official or agency having the responsibility to determine ballot positions determines that the number of candidates for an office requires the use of more than one column on a ballot, the official or agency having such responsibility shall require that the rows or columns be rotated in such a manner that all rows are positioned on top, or all columns are positioned to the left, in an equal number of wards or election districts. If the number of wards and election districts in which voting for an office is conducted is not equally divisible, the position of the rows or columns in the remaining wards or election districts shall be determined by the official or agency by the drawing of lots. The number of columns or rows shall be determined at the same time that the positions of the candidates' names are determined for each primary and election.

AB746, s. 26 Section 26. 5.62 (1) (a) of the statutes, as affected by 2011 Wisconsin Acts 32 and 75, is amended to read:

AB746,9,25 5.62 (1) (a) At the partisan primary, the following ballot shall be provided for the nomination of candidates of recognized political parties for national, state and county offices and independent candidates for state office in each ward, in the same form as prescribed by the board under s. 7.08 (1) (a), except as authorized in s. 5.655. The ballots shall be made up of the several party tickets with each party entitled to participate in the primary under par. (b) or sub. (2) having its own ballot, except as authorized in s. 5.655. The ballots shall be secured together at the bottom. The party ballot of the party receiving the most votes for president or governor at the last general election shall be on top with the other parties arranged in descending order based on their vote for president or governor at the last general election. The ballots of parties qualifying under sub. (2) shall be placed after the parties qualifying under par. (b), in the same order in which the parties filed petitions with the board. Any ballot required under par. (b) 2. shall be placed next in order. At polling places where voting machines are used, each party shall be represented in one or more separate columns or rows on the ballot. At polling places where an electronic voting system is used other than an electronic voting machine, each party may be represented in separate columns or rows on the ballot.

AB746, s. 27 Section 27. 5.655 (1) of the statutes is amended to read:

AB746,10,9 5.655 (1) Whenever a separate ballot is required to be used, a municipality may use a single ballot to facilitate the use of voting machines or an electronic voting system or, if the municipality employs paper ballots, may use a consolidated paper ballot that is authorized under sub. (2). If a municipality uses a single ballot in lieu of separate ballots, the ballot shall include a separate column or row for any office, referendum or party for which a separate ballot is required by law and the ballot shall be distributed only to electors who are eligible to vote for all of the offices and referenda appearing on the ballot.

AB746, s. 28 Section 28. 5.66 of the statutes is amended to read:

AB746,10,18 5.66 Number of ballots. (1) For local elections, where necessary, municipal clerks shall have sufficient ballots printed or otherwise prepared whenever a voting system does not utilize printed ballots to assure a ballot for all electors or voting machines. For all other elections the municipal clerks shall certify to their county clerk, on the first day of the 2nd month preceding the month in which the primary is held, the approximate number of electors in the municipality. The county clerk shall total these estimates and order a sufficient supply to assure ballots for all electors and voting machines.

AB746,11,9 (2) The county clerk or board of election commissioners shall print a sufficient number of sample ballots. The municipal clerk or board of election commissioners shall print sample ballots whenever the municipality prepares ballots under s. 7.15 (2) (b) or (c). Sample ballots shall be printed on nonwhite colored paper and shall be overprinted "SAMPLE". Voting machine sample ballots shall be a reduced size diagram of the face of the board or screen inside the voting machine with all candidates, issues and voting instructions as they will appear on the official ballot. Sample ballots to be used with an electronic voting system in which ballots that are distributed to electors are used shall be an actual size copy of the ballot. The clerk or board of election commissioners printing the ballots shall distribute the samples approximately as follows: 45% shall be kept in the clerk's or board's office and distributed to electors requesting them; 45% shall be sent to the municipalities, or, if the municipality prints ballots, 45% shall be sent to the county for distribution to the electors; and 10% shall be reserved to be sent to the polling places by municipalities in proportion to the number certified in sub. (1) and made available to electors at the polls on election day.

AB746, s. 29 Section 29. 5.68 (1) of the statutes is amended to read:

AB746,11,14 5.68 (1) The cost of acquisition of ballot boxes and voting booths, voting machines or electronic voting systems and regular maintenance thereof shall be borne by the municipalities in which the boxes, booths, machines or systems are used.

AB746, s. 30 Section 30. 5.68 (3) of the statutes is amended to read:

AB746,11,23 5.68 (3) If voting machines are used or if an electronic voting system is used in which all candidates and referenda appear on the same ballot, the ballots for all national, state and county offices and for county and state referenda shall be prepared and paid for by the county wherein they are used. If the voting machine or electronic voting system ballot includes a municipal or school, technical college, sewerage or sanitary district ballot, the cost of that portion of the ballot shall be reimbursed to the county or paid for by the municipality or district, except as provided in a 1st class city school district under sub. (2).

AB746, s. 31 Section 31. 5.72 (1) of the statutes is amended to read:

AB746,12,12 5.72 (1) As soon as possible after ballots are delivered to the county clerk or to the municipal clerk if the municipality is preparing ballots under s. 7.15 (2), but not later than 3 weeks before any election relating to a state or national office or statewide referendum, the county or municipal clerk preparing the ballots shall submit one copy of each ballot to the board for review of possible errors. If the contractor preparing the ballots supplies proofs in advance of ballot preparation, the clerk shall submit one copy of the proofs in lieu of actual ballots. If a voting machine ballot or other ballot combining local candidates or referenda with state or national candidates or referenda is used, the entire ballot shall be submitted, but if ballots intended for distribution to electors are used, otherwise only those ballots relating to state or national offices and statewide referenda need be submitted. This subsection does not require delay of ballot distribution or mailing of absentee ballots.

AB746, s. 32 Section 32. 5.76 of the statutes is amended to read:

AB746,12,21 5.76 Adoption, experimentation or discontinuance of systems. The governing body or board of election commissioners of any municipality may by ordinance or resolution adopt, experiment with, or discontinue any electronic voting system authorized by this subchapter and approved under s. 5.91 for use in this state, and may purchase or lease materials or equipment for such system to be used in all or some of the wards within its jurisdiction, either exclusively or in combination with mechanical voting machines, or in combination with paper ballots where such ballots are authorized to be used.

AB746, s. 33 Section 33. 5.77 (1) of the statutes is renumbered 5.77 and amended to read:

AB746,12,25 5.77 Applicable procedures. So far as applicable, the procedure provided for voting paper ballots applies when an electronic voting system employing the use of ballots distributed to electors is used.

AB746, s. 34 Section 34. 5.77 (2) of the statutes is repealed.

AB746, s. 35 Section 35. 5.78 of the statutes is amended to read: