CHAPTER 9
POST ELECTION ACTIONS; DIRECT LEGISLATION
Ch. 9 Cross-reference
Cross-reference: See definitions in s.
5.02.
9.01(1)(1)
Petition; fees; general procedures. 9.01(1)(a)(a) Any candidate voted for at any election or any elector who voted upon any referendum question at any election may request a recount. The petitioner shall file a verified petition or petitions accompanied by the fee prescribed in
par. (ag), if any, with the proper clerk or body under
par. (ar) not earlier than the time of completion of the canvass and not later than 5 p.m. on the 3rd business day following the last meeting day of the municipal or county board of canvassers determining the election for that office or on that referendum question or, if more than one board of canvassers makes the determination not later than 5 p.m. on the 3rd business day following the last meeting day of the last board of canvassers which makes a determination. If the board of state canvassers makes the determination for the office or the referendum question, the petitioner shall file the petition not earlier than the last meeting day of the last county board of canvassers to make a statement in the election or referendum and not later than 5 p.m. on the 3rd business day following the day on which the elections board receives the last statement from a county board of canvassers for the election or referendum. Each verified petition shall state that at the election the petitioner was a candidate for the office in question or that he or she voted on the referendum question in issue; that the petitioner is informed and believes that a mistake or fraud has been committed in a specified ward or municipality in the counting and return of the votes cast for the office or upon the question; or shall specify any other defect, irregularity or illegality in the conduct of the election. The petition shall specify each ward, or each municipality where no wards exist, in which a recount is desired. If a recount is requested for all wards within a jurisdiction, each ward need not be specified. The petition may be amended to include information discovered as a result of the investigation of the board of canvassers after the filing of the petition, if the petitioner moves to amend the petition as soon as possible after the petitioner discovered or reasonably should have discovered the information which is the subject of the amendment and the petitioner was unable to include information in the original petition.
9.01(1)(ag)1.1. Each petition for a recount shall be accompanied by the fee prescribed in this paragraph. If the difference between the votes cast for the leading candidate and those cast for the petitioner or the difference between the affirmative and negative votes cast upon any referendum question is less than 10 if 1,000 or less votes are cast or less than .5% of the total votes cast for the office or on the question if more than 1,000 votes are cast, the petitioner is not required to pay a fee.
9.01(1)(ag)2.
2. If the difference between the votes cast for the leading candidate and those cast for the petitioner or the difference between the affirmative and negative votes cast upon any referendum question is at least 10 if 1,000 or less votes are cast or at least .5% if more than 1,000 votes are cast, the petitioner shall pay a fee of $5 for each ward for which the petition requests a ballot recount, or $5 for each municipality where no wards exist.
9.01(1)(ag)3.
3. All fees shall be prepaid in cash or another form of payment which is acceptable to the officer to whom they are paid. No petition for which a fee is required is valid unless the proper fee is paid at the time of filing.
9.01(1)(ag)4.
4. The board shall deposit all moneys received by it into the account under
s. 20.510 (1) (g), and shall pay the fees required for each recount to the county clerks of the counties in which the recount is to be held. The county clerk shall deposit fees received by him or her with the county treasurer. The municipal clerk shall deposit fees received by him or her with the municipal treasurer.
9.01(1)(ag)5.
5. In this paragraph, the "leading candidate" includes every individual whose vote total at the time of the filing of the recount petition would entitle the individual to election or nomination to office. In an election in which more than one office of the same type is to be filled from the same territory, the number and percentage of votes cast under this paragraph shall be determined by first dividing the total number of votes cast for the office by the number of offices being filled at the election from the same territory.
9.01(1)(ar)1.1. In the event of a recount for any office, the petition shall be filed with the clerk or body with whom nomination papers are filed for that office.
9.01(1)(ar)2.
2. In the event of a recount for a referendum, the petition shall be filed with the clerk of the jurisdiction in which the referendum is called, and in the case of the state with the elections board.
9.01(1)(ar)3.
3. Upon receipt of a valid petition, the clerk shall thereupon notify the proper board of canvassers. Upon receipt of a valid petition by the elections board, the board shall promptly by certified mail or other expeditious means order the proper county boards of canvassers to commence the recount. County boards of canvassers shall convene no later than 9 a.m. on the day following receipt of an order and may adjourn for not more than one day at a time until the recount is completed in the county, except that the elections board may permit extension of the time for adjournment. Returns from a recount ordered by the elections board shall be transmitted to the office of the board as soon as possible, but in no case later than 13 days from the date of the order of the board directing the recount. The board of state canvassers may not make a determination in any election if a recount is pending before any county board of canvassers in that election. The board of state canvassers need not recount actual ballots, but shall verify the returns of the county boards of canvassers in making its determinations.
9.01(1)(b)
(b) 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. The recount shall proceed for each ward or municipality as follows:
9.01(1)(b)1.
1. The board of canvassers shall first compare the registration or poll lists and determine the number of voting electors.
9.01(1)(b)2.
2. The board of canvassers shall then examine the absentee ballot envelopes. Any defective absentee ballot envelopes shall be laid aside, properly marked and carefully preserved. The number of voters shall be reduced by the number of ballot envelopes set aside under this subdivision. An absentee ballot envelope is defective only if it is neither sworn nor witnessed, if it is not signed by the voter or if the affidavit supporting the absentee ballot envelope has such a number of technical errors that the board of canvassers is doubtful of the legal effect of the affidavit.
9.01(1)(b)3.
3. They shall then examine the container or bag containing the ballots to be certain it has not been tampered with, opened, or opened and resealed. Any irregularities or possible tampering with the container or bag shall be noted.
9.01(1)(b)4.
4. When the container or bag has been checked, it shall be opened and the contents removed. The board of canvassers shall, without examination other than is necessary to determine that each is a single ballot, count the number of ballots therein, excluding ballots removed under
s. 7.51 (2) (e). Then, for each opened absentee ballot envelope that was laid aside as defective under
subd. 2., the board of canvassers shall, without inspection, randomly draw one absentee ballot from the container or bag. In differentiating absentee ballots from other ballots, the board of canvassers shall presume that a ballot initialed only by the municipal clerk, the executive director of the board of election commissioners or a deputy clerk or secretary is an absentee ballot. If there are more defective absentee ballot envelopes than there are probable absentee ballots, all of the probable absentee ballots shall be removed from the container or bag. Additional ballots shall be removed only if the number of remaining ballots still exceeds the number of voting electors recorded under
subd. 1., reduced by the number of defective envelopes set aside under
subd. 2. All ballots removed shall not be counted, but shall be marked as to the reason for their removal, set aside and carefully preserved. If the number of ballots still exceeds the number of voters, the board of canvassers shall place all ballots face up to check for blank ballots. Any blank ballots shall be so marked, set aside and carefully preserved. If the number of ballots still exceeds the number of voters reduced by the number of defective envelopes set aside under
subd. 2., the board of canvassers shall place all ballots face down to check the initials. Any ballot not properly initialed by 2 inspectors or any absentee ballot not properly initialed by the municipal clerk, the executive director of the board of election commissioners or a deputy clerk or secretary shall be temporarily set aside and the board of canvassers shall, without inspection, randomly draw from these ballots as many as are necessary to reduce the number of ballots to equal the number of voters. Any ballots removed for lack of initials shall not be counted but shall be marked, set aside and carefully preserved. If the number of ballots still exceeds the number of voters reduced by the number of defective envelopes set aside under
subd. 2., the remaining ballots shall be returned to the container or bag and the board of canvassers shall draw a number of ballots equal to the excess number of ballots by chance and without inspection from the container or bag. These ballots shall not be counted but shall be marked as having been removed by the canvassers on recount due to an excess number of ballots, set aside and carefully preserved.
9.01(1)(b)5.
5. When the number of ballots and voters agree, or after noting that the number of voters exceeds the number of ballots, the board of canvassers shall return all ballots to be counted to the ballot box and shall turn the ballot box in such manner as to thoroughly mix the ballots. The recount shall then begin.
9.01(1)(b)5m.
5m. Except as otherwise provided in this section, the recount shall be conducted in accordance with
s. 7.51.
9.01(1)(b)6.
6. In recounting the votes cast on a voting machine in which the record of the votes cast is contained in the machine, the board of canvassers shall make a record of the number of the seal, if any, the number of the protective counter or other device, if one is provided, and shall open the recording compartment of the machine, and without unlocking the machine against voting, shall recount the votes thereon. If the machine is an electronic voting machine utilizing a detachable record of votes cast, the record shall be retabulated under
s. 5.90.
9.01(1)(b)7.
7. When a machine is recounted, the board of canvassers shall proceed to inspect and examine the machine showing the votes cast for each office or referendum specified in the petition, and shall make a record of the votes for that office or referendum as shown on that voting machine, which they shall certify as correct, in the presence of at least one witness.
9.01(1)(b)8.
8. If upon the recount it is found that the original canvass of the returns has been correctly made from a voting machine and that a discrepancy still remains unaccounted for, the board of canvassers shall publicly unlock the voting and counting mechanism of the machine, and shall proceed to examine and test the machine to determine the cause of the discrepancy in returns from the machine. A similar test shall be performed for electronic voting machines to ascertain whether there is any malfunction in the machine. After the completion of the examination and test, the board of canvassers shall prepare a statement giving the results of the examination and test. The statement shall be witnessed by at least one witness.
9.01(1)(b)8m.
8m. Where a voting machine or electronic voting system is used, and an error in the vote total as shown on the machine or record of votes cast is clearly apparent, the board of canvassers may change the vote total as shown by the machine or system and certify or use a different total to certify a different result than is indicated by the machine or system if there is evidence of a specific malfunction in the machine or system, if the malfunction could reasonably have caused the error, and if clear and convincing evidence exists which indicates the exact actual total number of votes cast. The burden of demonstrating that a vote total shown on a machine or record of votes cast is incorrect rests with the party seeking to change the recorded result on the basis of clear and convincing evidence.
9.01(1)(b)9.
9. If upon the recount it appears that the original canvass of the returns by the election officials was incorrect, the statements and determinations of the board of canvassers shall be corrected accordingly.
9.01(1)(b)10.
10. Recounts at polling places utilizing an electronic voting system in which ballots are distributed to electors shall be performed in accordance with the procedure for recounting paper ballots insofar as applicable, except as provided in
s. 5.90. Recounts at polling places utilizing electronic voting machines shall be performed in accordance with the procedure for recounting votes cast on mechanical voting machines, insofar as applicable, except as provided in
s. 5.90.
9.01(1)(b)11.
11. All steps of the recount shall be performed publicly. All materials and ballots may be viewed and identified by the candidates, the person demanding the recount and their authorized representatives and counsel, but only members of the board of canvassers and tabulators assisting them may touch any of the materials or ballots. The candidates, the person demanding the recount and their authorized representatives and counsel may object to the counting of any ballot. Any errors shall be corrected.
9.01(2)
(2) Notice to candidates. When the recount concerns an election for an office, the clerk or body with whom the petition is filed shall promptly prepare a copy of the petition for delivery to each opposing candidate for the same office whose name appears on the ballot. In a recount proceeding for a partisan primary, the clerk or body shall prepare a copy of the petition for delivery to each opposing candidate for the same party nomination for the same office, to each opposing candidate for the party nomination of each other party for the same office and to each independent candidate qualifying to have his or her name placed on the ballot for the succeeding election. The clerk or body shall then promptly deliver the copies of the petition to the sheriff, who shall promptly deliver the copies of the petition to each candidate at the address given on the candidate's nomination papers, without fee, in the manner provided for service of a summons in civil actions.
9.01(3)
(3) Representation and observation. The petitioner, all opposing candidates and interested persons shall be entitled to be present in person and by counsel to observe the proceedings.
9.01(4)
(4) Right to complete recount. Whenever a recount petition for part of the wards within a jurisdiction or district, or for part of the municipalities within a district where there are no wards, is filed under this section, the opposing candidate, or any voter or other interested party including a municipality if on a referendum question, may similarly file a petition for recount in any or all of the remaining wards or municipalities in the jurisdiction or district. The petition shall be filed not later than 5 p.m. 2 days after the board of canvassers completes the first recount. The proper board of canvassers shall reconvene at 9 a.m. on the next business day following the filing of the petition and proceed to recount the ballots in all wards or municipalities specified and to otherwise review the allegations of fact contained in the petition. Any errors shall be corrected.
9.01(5)
(5) Oaths; minutes; witness fees; tabulators; timing; publication. 9.01(5)(a)(a) The board of canvassers shall keep complete minutes of all its proceedings. The minutes shall include a record of objections and offers of evidence. If the board of canvassers receives exhibits from any party, it shall number and preserve the exhibits. The board of canvassers shall make specific findings of fact with respect to any irregularity raised in the petition or discovered during the recount. Any member of the board of canvassers may administer oaths, certify official acts and issue subpoenas for purposes of this section. Witness fees shall be paid by the county. In the case of the board of state canvassers, witness fees shall be paid by the elections board.
9.01(5)(b)
(b) The board of canvassers conducting a recount may select and employ tabulators to assist it in its duties. Tabulators shall perform their duties under the direction of the board of canvassers. Only the members of the board of canvassers are competent to make any determination as to the validity of any vote tabulated. Compensation of tabulators shall be determined under
s. 7.03.
9.01(5)(c)
(c) If the recount is made by a municipal or county board of canvassers and the result is required to be reported to a county board of canvassers or to the board of state canvassers, the board of canvassers making the initial recount shall immediately certify the results to the county board of canvassers or board of state canvassers. If a county board of canvassers receives such results, it shall then convene not later than 9 a.m. on the next business day following receipt to examine the returns and determine the results. If the board of state canvassers receives such results, it shall convene not later than 9 a.m. on the 3rd business day following receipt to examine the returns and determine the results, but if that day is earlier than the latest meeting day permitted for that election under
s. 7.70 (3) (a), the board of state canvassers may convene not later than the day specified in
s. 7.70 (3) (a).
9.01(5)(d)
(d) Whenever publication of an original determination is required, the county or municipal clerk shall publish the recount determination in the same manner.
9.01(6)
(6) Appeal to circuit court. 9.01(6)(a)(a) Within 5 business days after completion of the recount determination by the board of canvassers in all counties concerned, or within 5 business days after completion of the recount determination by the board of state canvassers whenever a determination is made by that body, any candidate, or any elector when for a referendum, aggrieved by the recount may appeal to circuit court. The appeal shall commence by serving a written notice of appeal on the other candidates and persons who filed a written notice of appearance before each board of canvassers whose decision is appealed, or in the case of a statewide recount, before the board of state canvassers. The appellant shall also serve notice on the elections board if the board of state canvassers is responsible for determining the election. The appellant shall serve the notice by certified mail or in person. The appellant shall file the notice with the clerk of circuit court together with an undertaking and surety in the amount approved by the court, conditioned upon the payment of all costs taxed against the appellant.
9.01(6)(b)
(b) If an appeal is filed from a recount determination in an election which is held in more than one judicial circuit, the chief judge of the judicial administrative district in which the election is held shall consolidate all appeals relating to that election and appoint a circuit judge, who shall be a reserve judge if available, to hear the appeal. If the election is held in more than one judicial administrative district, the chief justice of the supreme court shall make the appointment.
9.01(7)
(7) Court procedures; costs. 9.01(7)(a)(a) The court with whom an appeal is filed shall forthwith issue an order directing each affected county or municipal clerk or board to transmit immediately all ballots, papers and records affecting the appeal to the clerk of court or to impound and secure such ballots, papers and records, or both. The order shall fix a place and a time for the hearing within 5 days of the order either in open court, at chambers or before a referee. The order shall be served upon each affected county or municipal clerk or board and all other candidates and persons who filed a written notice of appearance before any board of canvassers involved in the recount. A reference may be ordered upon any question. At the assigned time and place, the matter shall be summarily heard and determined and costs taxed as in other civil actions.
9.01(7)(b)
(b) The appeal shall be heard by a judge without a jury. Within 10 days after an appeal is filed, the appellant shall file a complaint enumerating with specificity every alleged irregularity, defect, mistake or fraud committed during the recount. The appellant shall file a copy of the complaint with each person who is entitled to receive a copy of the order under
par. (a). The court shall promptly require an answer from the other parties to the appeal. The court shall hold a hearing on the matter within 15 days of the date that the answer is filed. Those provisions of
chs. 801 to
806 which are inconsistent with a prompt and expeditious hearing do not apply to appeals under this section.
9.01(8)
(8) Scope of review. Unless the court finds a ground for setting aside or modifying the determination of the board of canvassers, it shall affirm the determination. The court shall separately treat disputed issues of procedure, interpretations of law and findings of fact. The court may not receive evidence not offered to the board of canvassers except for evidence that was unavailable to a party exercising due diligence at the time of the recount or newly discovered evidence that could not with due diligence have been obtained during the recount, and except that the court may receive evidence not offered at an earlier time because a party was not represented by counsel in all or part of a recount proceeding. A party who fails to object or fails to offer evidence of a defect or irregularity during the recount waives the right to object or offer evidence before the court except in the case of evidence that was unavailable to a party exercising due diligence at the time of the recount or newly discovered evidence that could not with due diligence have been obtained during the recount or evidence received by the court due to unavailability of counsel during the recount. The court shall set aside or modify the determination if it finds that the board of canvassers has erroneously interpreted a provision of law and a correct interpretation compels a particular action. If the determination depends on any fact found by the board of canvassers, the court may not substitute its judgment for that of the board of canvassers as to the weight of the evidence on any disputed finding of fact. The court shall set aside the determination if it finds that the determination depends on any finding of fact that is not supported by substantial evidence.
9.01(9)
(9) Appeal to court of appeals. 9.01(9)(a)(a) Within 30 days after entry of the order of the circuit court, a party aggrieved by the order may appeal to the court of appeals.
9.01(9)(b)
(b) If an appeal is filed in respect to an election which is held in more than one court of appeals district, the chief justice of the supreme court shall consolidate all appeals relating to that election and designate one district to hear the appeal, except that if an appeal is filed in respect to an election for statewide office or a statewide referendum, the appeal shall be heard by the 4th district court of appeals.
9.01(9)(c)
(c) The court of appeals shall give precedence to the appeal over other matters not accorded similar precedence by law.
9.01(10)
(10) Standard forms and methods. The elections board shall prescribe standard forms and procedures for the making of recounts under this section.
9.01(11)
(11) Exclusive remedy. This section constitutes the exclusive judicial remedy for testing the right to hold an elective office as the result of an alleged irregularity, defect or mistake committed during the voting or canvassing process.
9.01 Annotation
Challenge of compliance with procedures for absent voting is within board's jurisdiction. Absent connivance, fraud or undue influence, substantial compliance with statutory voting procedures is sufficient. Appeal From Recount in Election Contest, 105 W (2d) 468, 313 NW (2d) 869 (Ct. App. 1981).
9.01 Annotation
Sub. (8) doesn't require party against whom board rules to object to board's determination to preserve issue for judicial review. Clifford v. Colby School Dist., 143 W (2d) 581, 421 NW (2d) 852 (Ct. App. 1988).
9.01 Annotation
Post-election eligibility challenges are properly brought under this section. Logerquist v. Nasewaupee Canvassers, 150 W (2d) 907, 442 NW (2d) 551 (Ct. App. 1989).
