5.01(3)(a)(a) Except as provided in
par. (b), in every election to choose any officer, each elector has one vote for each office unless clearly indicated otherwise. The person receiving the greatest number of legal votes for the office shall be declared elected, and the canvassers shall so determine and certify.
5.01(3)(b)
(b) In an election to fill a nonpartisan state office, if no names are certified to appear on the ballot, no person may be declared elected.
5.01(4)(a)(a) If 2 or more candidates for the same office receive the greatest, but an equal number of votes, the winner shall be chosen by lot in the presence of the board of canvassers charged with the responsibility to determine the election, except as provided in
s. 8.17 (4) (b), or in the case of an election for state or national office or municipal judge, if the judge is elected under
s. 755.01 (4), or metropolitan sewerage commissioner, if the commissioner is elected under
s. 66.23 (11) (am), in the presence of the chairperson of the board.
5.01(4)(b)
(b) If, in a primary, 2 or more candidates receive an equal but not the greatest number of votes so that only one of those candidates with equal votes may advance to the final election, the choice shall similarly be made by drawing lots.
5.01(4)(c)
(c) The candidates may, if all those tied for the same office are present, draw for themselves. Upon refusal or absence of any of the candidates, the board of canvassers shall appoint a competent person to draw, and upon the results declare and certify the winner.
5.01(4)(d)
(d) If a question is submitted to the electors and an equal number of votes are cast for and against adoption, the question fails adoption.
5.01(5)
(5) Election of governor and lieutenant governor. 5.01(5)(a)(a) In every general election to choose the governor and the lieutenant governor, each elector shall have a single vote applicable to both offices. The persons receiving the greatest number of legal votes cast jointly for them for governor and lieutenant governor shall be declared elected, and the canvassers shall so determine and certify.
5.01(5)(b)
(b) In case 2 or more slates have an equal and the highest number of votes for governor and lieutenant governor, the 2 houses of the legislature shall at the next annual session choose by joint ballot one of the slates so having an equal and the highest number of votes for governor and lieutenant governor.
5.01 Annotation
Where there is substantial compliance with, but a deviation from a provision in an election statute, thereby giving rise to the question of whether the requirement is directory or mandatory, the supreme court in a long line of cases has consistently construed the provision as directory in keeping with (1), which requires that the election laws shall be so construed as to give effect to the will of the electors. Lanser v. Koconis, 62 W (2d) 86, 214 NW (2d) 425.
5.01 Annotation
Where 40% of registered voters were denied ballots in election to remove county seat, election was set aside even though outcome probably was not affected. McNally v. Tollander, 100 W (2d) 490, 302 NW (2d) 440 (1981).
5.02
5.02
Definitions. In
chs. 5 to
12, unless the context requires otherwise:
5.02(1)
(1) "Automatic tabulating equipment" means apparatus which automatically examines and counts votes recorded on ballots or voting machines and tabulates the results.
5.02(1e)
(1e) "Ballot" means a tabulating card, 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.
5.02(1m)
(1m) "Ballot label" means the page, card or material containing the names of offices and candidates or referenda to be voted on, which is placed on a voting device. The term does not include a sticker applied to ballots to fill a vacancy in a nomination.
5.02(1q)
(1q) "Block" means an area which is the smallest geographic area used by the U.S. bureau of the census for data collection and tabulation.
5.02(1s)
(1s) "Board" means the elections board.
5.02(2)
(2) "County clerk" includes the executive director of the county board of election commissioners and their authorized representatives.
5.02(3)
(3) "Educational officer" means the state superintendent and school board members.
5.02(3m)
(3m) "Elected official" means an individual who is elected to a national, state or local office.
5.02(4)
(4) "Election" means every public primary and election.
5.02(4c)
(4c) "Election district" means a municipality that is not divided into wards, except as otherwise provided in
s. 8.17 (1) (b).
5.02(4e)
(4e) "Election official" means an individual who is charged with any duties relating to the conduct of an election.
5.02(4m)
(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.
5.02(5)
(5) "General election" means the election held in even-numbered years on the Tuesday after the first Monday in November to elect United States senators, representatives in congress, presidential electors, state senators, representatives to the assembly, district attorneys, state officers other than the state superintendent and judicial officers, and county officers other than supervisors and county executives.
5.02(6)
(6) "Governing body" means the common council of a city, board of supervisors of a town or board of trustees of a village.
5.02(7)
(7) "Judge" means a court of appeals judge or a judge of a circuit court.
5.02(8)
(8) "Justice" means a justice of the supreme court.
5.02(8m)
(8m) "Labor organization" means any employe organization in which employes participate and which exists primarily for the purpose of engaging in collective bargaining with any employer concerning grievances, labor disputes, wages, hours or conditions of employment, or the promotion and advancement of the professional or occupational standards and the welfare of its members and families and any organization established for the same purposes composed of individuals or affiliates of any such employe organization.
5.02(9)
(9) "Local office" means any elective office other than a state or national office.
5.02(10)
(10) "Municipal clerk" means the city clerk, town clerk, village clerk and the executive director of the city election commission and their authorized representatives. Where applicable, "municipal clerk" also includes the clerk of a school district.
5.02(11)
(11) "Municipality" means city, town or village.
5.02(12)
(12) "National office" means the offices of president and vice president of the United States, U.S. senator and representative in congress.
5.02(12m)
(12m) "Nickname" means a familiar or shortened form of a proper name by which an individual is commonly known.
5.02(13)
(13) "Political party" or "party" means a state committee registered under
s. 11.05 organized exclusively for political purposes under whose name candidates appear on a ballot at any election, and all county, congressional, legislative, local and other affiliated committees authorized to operate under the same name. For purposes of
ch. 11, the term does not include a legislative campaign committee or a committee filing an oath under
s. 11.06 (7).
5.02(14)
(14) "Poll list" means the list which is compiled by election officials on election day showing the names and addresses of electors who actually cast votes in an election.
5.02(15)
(15) "Polling place" means the actual location wherein the elector's vote is cast.
5.02(16)
(16) "Primary" means a primary election.
5.02(16m)
(16m) "Recognized political party" means a political party which qualifies for a separate ballot or column under
s. 5.62 (1) (b) or
(2).
5.02(16s)
(16s) "Referendum" means an election at which an advisory, validating or ratifying question is submitted to the electorate.
5.02(17)
(17) "Registration list" means the list of electors who are properly registered to vote in municipalities in which registration is required.
5.02(18)
(18) "September primary" means the primary held the 2nd Tuesday in September to nominate candidates to be voted for at the general election, and to determine which candidates for state offices other than district attorney may participate in the Wisconsin election campaign fund.
5.02(19)
(19) "Special election" means any election, other than those described in
subs. (5),
(18),
(21) and
(22), to fill vacancies or to conduct a referendum.
5.02(20)
(20) "Special primary" means the primary held 4 weeks before the special election except when the special election is held on the same day as the general election the special primary shall be held on the same day as the general primary or if the special election is held concurrently with the spring election, the primary shall be held concurrently with the spring primary.
5.02(20g)
(20g) "Special purpose district" means any local governmental unit other than a county or municipality.
5.02(20r)
(20r) "Special referendum" means any referendum held at a special election which is not held concurrently with the elections described in
sub. (5),
(18),
(21) or
(22).
5.02(21)
(21) "Spring election" means the election held on the first Tuesday in April to elect judicial, educational and municipal officers, nonpartisan county officers, sewerage commissioners and to express preferences for the person to be the presidential candidate for each party.
5.02(22)
(22) "Spring primary" means the nonpartisan primary held the 3rd Tuesday in February to nominate candidates to be voted for at the spring election.
5.02(23)
(23) "State office" means the offices of governor, lieutenant governor, secretary of state, state treasurer, attorney general, state superintendent, justice of the supreme court, court of appeals judge, circuit court judge, state senator, state representative to the assembly and district attorney.
5.02(24)
(24) "State superintendent" means the state superintendent of public instruction.
5.02(24g)
(24g) "Voting device" means an apparatus other than a voting machine which the elector uses to record his or her votes on a ballot.
5.02(24r)
(24r) "Voting machine" means a machine which serves in lieu of a voting booth and which mechanically or electronically records the votes cast by electors, who depress levers or buttons located next to the choices listed on a ballot to cast their votes.
5.02(25)
(25) "Ward" means a town, village or city subdivision created for the convenience of the electors therein and to facilitate the division of such municipalities into election districts of substantially equal population numbers along common boundaries observing the community of interest of existing neighborhoods and other settlements.
5.02 History
History: 1971 c. 211;
1971 c. 304 ss.
2,
29 (2);
1973 c. 280,
334;
1975 c. 93;
1977 c. 107,
187,
394;
1977 c. 427 ss.
3 to
14;
1977 c. 449;
1979 c. 32,
89,
221;
1979 c. 260 ss.
1m,
73 to
75;
1979 c. 311,
328;
1981 c. 4,
391;
1983 a. 484 ss.
5,
5c,
124m,
128;
1985 a. 303;
1985 a. 304 ss.
1m,
2,
155;
1987 a. 391 ss.
1 to
1r,
66w;
1989 a. 31;
1991 a. 5;
1993 a. 140,
184;
1995 a. 16 s.
2;
1995 a. 27 s.
9145 (1);
1995 a. 219;
1997 a. 35.
5.05
5.05
Elections board; powers and duties. 5.05(1)
(1)
General authority. The elections 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:
5.05(1)(a)
(a) Employ an executive director outside the classified service and employ legal counsel. The executive director shall serve as the chief election officer for this state.
5.05(1)(b)
(b) In the discharge of its duties and upon notice to the party or parties being investigated, 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.
5.05(1)(c)
(c) Bring civil 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. 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.
5.05(1)(d)
(d) Sue for injunctive relief, a writ of mandamus or prohibition, or other such legal or equitable relief as may be appropriate to enforce any law regulating the conduct of elections or election campaigns or ensure its proper administration. No bond is required in such actions. Actions shall be brought in circuit court for the county where a violation occurs or may occur.
5.05(1)(e)
(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) 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.
5.05(1)(f)
(f) Promulgate rules under
ch. 227 applicable to all jurisdictions for the purpose of interpreting or implementing the laws regulating the conduct of elections or election campaigns or ensuring their proper administration.
5.05(2)
(2) Auditing. In addition to the facial examination of reports and statements required under
s. 11.21 (13), the board shall conduct an audit of reports and statements which are required to be filed with it to determine whether violations of
ch. 11 have occurred. The board may examine records relating to matters required to be treated in such reports and statements. The board shall make official note in the file of a candidate, committee, group or individual under
ch. 11 of any error or other discrepancy which the board discovers and shall inform the person submitting the report or statement.
5.05(3)(a)(a) The board shall upon complaint by any person or on its own motion investigate violations of the elections laws and shall notify the district attorney of the proper county, the attorney general or the governor where appropriate under
s. 11.60 (4) or
11.61 (2) of any facts within its knowledge or evidence in its possession which may be grounds for civil action or criminal prosecution.
5.05(3)(b)
(b) In any case in which the board refers information relating to an apparent violation of this section, the district attorney, attorney general, or any special counsel appointed under
s. 14.11 (2) shall respond by report to the board with respect to any action taken regarding such apparent violation. The report shall be transmitted no later than 40 days after the date of the referral. If the matter is not disposed of during such period, the board shall receive a further report at the close of every 30-day period until the time of final disposition.
5.05(3)(c)
(c) No investigation is required of any petition or complaint which is not verified. The board may summarily dismiss any complaint which it finds to be without merit.
5.05(4)
(4) Employes. All employes of the board shall be nonpartisan.
5.05(5)
(5) Biennial report. Notwithstanding
s. 15.04 (1) (d), the board shall file its biennial report required by that paragraph on or before June 30 of each odd-numbered year, covering the biennium ending on the previous December 31. The board may include any information compiled under
s. 11.21 (7) in such report.
5.05(6)
(6) Formal opinions. Any interested person may make written request to the board to issue a formal opinion with respect to the person's authority or responsibilities under
chs. 5 to
12. The board shall within 15 days advise the person requesting an opinion whether or not a formal opinion will be issued. If a formal opinion will be issued, it shall be issued within 30 days of the request. No person acting in good faith upon a formal opinion issued to the person by the board shall be subject to civil or criminal prosecution for so acting, if the material facts are as stated in the opinion request. Nothing in this subsection requires the issuance of an opinion by the board, nor precludes it from issuing an opinion or ruling in any other manner.
5.05(7)
(7) Administrative meetings and conferences. The board shall conduct regular information and training meetings at various locations in the state for county and municipal clerks and other election officials. Administrative meetings shall be designed to explain the election laws and the forms and rules of the board, to promote uniform procedures and to assure that clerks and other officials are made aware of the integrity and importance of the vote of each citizen. The board may conduct conferences relating to election laws, practice and procedure. The board may charge persons attending the administrative meetings and conferences for its costs incurred in conducting the meetings and conferences at a rate not exceeding the per capita cost incurred by the board.
5.05(9)
(9) Standing. The board has standing to commence or intervene in an action or proceeding for the purpose of enforcing the laws regulating the conduct of elections or election campaigns or ensuring their proper administration. If the board delegates authority to the executive director under
sub. (1) (e) to act in its stead, the executive director has standing to commence or intervene in such an action or proceeding.
5.05 History
History: 1973 c. 334;
1975 c. 85,
93,
199;
1977 c. 29;
1977 c. 196 s.
131;
1977 c. 418,
427,
447;
1979 c. 32 s.
92 (8);
1979 c. 89,
154,
328;
1983 a. 27,
484,
524,
538;
1985 a. 303;
1985 a. 304 ss.
3,
155;
1989 a. 31,
192.
5.05 Annotation
Notification to district attorney, attorney general or governor is not prerequisite to civil forfeiture under sub. (1) (c); notification pursuant to sub. (3) is required only as specified by s. 11.60 (4) or 11.61 (2). State Elections Board v. Hales, 149 W (2d) 306, 440 NW (2d) 579 (Ct. App. 1989).
5.06
5.06
Compliance review; appeal. 5.06(1)
(1) Whenever any elector of a jurisdiction or district served by an election official believes that a decision or action of the official or the failure of the official to act with respect to any matter concerning nominations, qualifications of candidates, voting qualifications, including residence, ward division and numbering, recall, ballot preparation, election administration or conduct of elections is contrary to law, or the official has abused the discretion vested in him or her by law with respect to any such matter, the elector may file a written sworn complaint with the board requesting that the official be required to conform his or her conduct to the law, be restrained from taking any action inconsistent with the law or be required to correct any action or decision inconsistent with the law or any abuse of the discretion vested in him or her by law. The complaint shall set forth such facts as are within the knowledge of the complainant to show probable cause to believe that a violation of law or abuse of discretion has occurred or will occur. The complaint may be accompanied by relevant supporting documents. The board may conduct a hearing on the matter in the manner prescribed for treatment of contested cases under
ch. 227 if it believes such action to be appropriate.
5.06(2)
(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.
5.06(3)
(3) A complaint under this section shall be filed promptly so as not to prejudice the rights of any other party. In no case may a complaint relating to nominations, qualifications of candidates or ballot preparation be filed later than 10 days after the complainant knew or should have known that a violation of law or abuse of discretion occurred or was proposed to occur.
5.06(4)
(4) The board may, on its own motion, investigate and determine whether any election official, with respect to any matter concerning nominations, qualifications of candidates, voting qualifications, including residence, ward division and numbering, recall, ballot preparation, election administration or conduct of elections, has failed to comply with the law or abused the discretion vested in him or her by law or proposes to do so.
5.06(5)
(5) Upon receipt of a complaint under
sub. (1), or upon its own motion, the board may order any election official to immediately transfer to its possession any original documents in the custody of the official which the board finds to be necessary and relevant to permit review of compliance with the laws concerning nominations, qualifications of candidates, ward division and numbering, recall or ballot preparation or the proper administration of such laws.
5.06(6)
(6) The board may, after such investigation as it deems appropriate, summarily decide the matter before it and, by order, require any election official to conform his or her conduct to the law, restrain an official from taking any action inconsistent with the law or require an official to correct any action or decision inconsistent with the law. The board shall immediately transmit a copy of the order to the official. An order issued under this subsection is effective immediately or at such later time as may be specified in the order.
5.06(7)
(7) The board may withdraw, modify or correct an order issued under
sub. (6) within a timely period if it finds such action to be appropriate.
5.06(8)
(8) Any election official or complainant who is aggrieved by an order issued under
sub. (6) may appeal the decision of the board to circuit court for the county where the official conducts business or the complainant resides no later than 30 days after issuance of the order. Pendency of an appeal does not stay the effect of an order unless the court so orders.
5.06(9)
(9) The court may not conduct a de novo proceeding with respect to any findings of fact or factual matters upon which the board has made a determination, or could have made a determination if the parties had properly presented the disputed matters to the board for its consideration. The court shall summarily hear and determine all contested issues of law and shall affirm, reverse or modify the determination of the board, according due weight to the experience, technical competence and specialized knowledge of the board, pursuant to the applicable standards for review of agency decisions under
s. 227.57.
5.06(10)
(10) This section does not apply to matters arising in connection with a recount under
s. 9.01.
