5.05(2m)(c)18.
18. Whenever the board refers a matter to special counsel or to a district attorney or to the attorney general under this subsection, the special counsel, district attorney, or attorney general shall report to the board concerning any action taken regarding the matter. The report shall be transmitted no later than 40 days after the date of the referral. If the matter is not disposed of during that period, the special counsel, district attorney, or attorney general shall file a subsequent report at the end of each 30-day period following the filing of the initial report until final disposition of the matter.
5.05(2m)(d)1.1. No individual who serves as the legal counsel to the board or as a division administrator for the board may have been a lobbyist, as defined in
s. 13.62 (11). No such individual may have served in a partisan state or local office.
5.05(2m)(d)2.
2. No employee of the board, while so employed, may become a candidate, as defined in
s. 11.01 (1), for a state or partisan local office. No individual who is retained by the board to serve as a special investigator or as special counsel may, while so retained become a candidate, as defined in
s. 11.01 (1), for any 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.
5.05(2m)(e)
(e) No individual who serves as an employee of the board and no individual who is retained by the board to serve as a special investigator or a special counsel may, while so employed or retained, make a contribution, as defined in
s. 11.01 (6), to a candidate for state or local office. No individual who serves as an employee of the board and no individual who is retained by the board to serve as a special investigator or as special counsel, for 12 months prior to becoming so employed or retained, may have made a contribution, as defined in
s. 11.01 (6), to a candidate for a partisan state or local office.
5.05(2m)(f)
(f) Pursuant to any investigation authorized under
par. (c), the board has the power:
5.05(2m)(f)1.
1. To require any person to submit in writing such reports and answers to questions relevant to the proceedings as the board may prescribe, such submission to be made within such period and under oath or otherwise as the board may determine.
5.05(2m)(f)2.
2. To order testimony to be taken by deposition before any individual who is designated by the board and has the power to administer oaths, and, in such instances, to compel testimony and the production of evidence in the same manner as authorized by
sub. (1) (b).
5.05(2m)(f)4.
4. To pay witnesses the same fees and mileage as are paid in like circumstances by the courts of this state.
5.05(2m)(f)5.
5. To request and obtain from the department of revenue copies of state income or franchise tax returns and access to other appropriate information under
s. 71.78 (4) regarding all persons who are the subject of such investigation.
5.05(2m)(g)1.1. Except as provided in
subd. 2., no action may be taken on any complaint that is filed later than 3 years after a violation of
subch. III of ch. 13 or
subch. III of ch. 19 is alleged to have occurred.
5.05(2m)(h)
(h) If the defendant in an action for a civil violation of
chs. 5 to
12,
subch. III of ch. 13, or
subch. III of ch. 19 is a district attorney or a circuit judge or a candidate for either such office, the action shall be brought by the board. If the defendant in an action for a civil violation of
chs. 5 to
12,
subch. III of ch. 13, or
subch. III of ch. 19 is the attorney general or a candidate for that office, the board may appoint special counsel to bring suit on behalf of the state.
5.05(2m)(i)
(i) If the defendant in an action for a criminal violation of
chs. 5 to
12,
subch. III of ch. 13, or
subch. III of ch. 19 is a district attorney or a circuit judge or a candidate for either such office, the action shall be brought by the attorney general. If the defendant in an action for a criminal violation of
chs. 5 to
12,
subch. III of ch. 13, or
subch. III of ch. 19 is the attorney general or a candidate for that office, the board may appoint a special prosecutor to conduct the prosecution on behalf of the state.
5.05(2m)(j)
(j) Any special counsel or prosecutor who is appointed under
par. (h) or
(i) shall be independent of the attorney general and need not be a state employee at the time of his or her appointment.
5.05(2s)
(2s) Ethics and accountability division. The ethics and accountability division has the responsibility for administration of
ch. 11,
subch. III of ch. 13, and
subch. III of ch. 19.
5.05(2w)
(2w) Elections Division. The elections division has the responsibility for the administration of
chs. 5 to
10 and
12.
5.05(3g)
(3g) Chief election officer. The board shall designate an employee of the board to serve as the chief election officer of this state.
5.05(4)
(4) Employees. All employees of the board shall be nonpartisan.
5.05(5e)
(5e) Biennial report. The board shall include in its biennial report under
s. 15.04 (1) (d) the names and duties of all individuals employed by the board and a summary of its determinations and advisory opinions issued under
sub. (6a). Except as authorized or required under
sub. (5s) (f) 2., the board shall make sufficient alterations in the summaries to prevent disclosing the identities of individuals or organizations involved in the decisions or opinions. The board may also include in its biennial report any information compiled under
s. 11.21 (7). The board shall make such further reports on the matters within its jurisdiction and such recommendations for further legislation as it deems desirable.
5.05(5f)
(5f) Advice to board. The joint committee on legislative organization shall be advisory to the board on all matters relating to operation of the board.
5.05(5s)
(5s) Access to records. Records obtained or prepared by the board in connection with an investigation, including the full text of any complaint received by the board, are not subject to the right of inspection and copying under
s. 19.35 (1), except as provided in
pars. (d) and
(e) and except that:
5.05(5s)(a)
(a) The board shall permit inspection of records that are distributed or discussed in the course of a meeting or hearing by the board in open session.
5.05(5s)(c)
(c) The board shall provide information from investigation and hearing records that pertains to the location of individuals and assets of individuals as requested under
s. 49.22 (2m) by the department of children and families or by a county child support agency under
s. 59.53 (5).
5.05(5s)(d)
(d) If the board commences a civil 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.
5.05(5s)(e)
(e) The following records of the board are open to public inspection and copying under
s. 19.35 (1):
5.05(5s)(e)1.
1. Any record of the action of the board authorizing the filing of a civil complaint under
sub. (2m) (c) 6.
5.05(5s)(e)2.
2. Any record of the action of the board referring a matter to a district attorney or other prosecutor for investigation or prosecution.
5.05(5s)(e)3.
3. Any record containing a finding that a complaint does not raise a reasonable suspicion that a violation of the law has occurred.
5.05(5s)(e)4.
4. Any record containing a finding, following an investigation, that no probable cause exists to believe that a violation of the law has occurred.
5.05(5s)(f)1.1. Except as authorized or required under
subd. 2., records obtained in connection with a request for an advisory opinion issued under
s. 5.05 (6a), other than summaries of advisory opinions that do not disclose the identity of individuals requesting such opinions or organizations on whose behalf they are requested, are not subject to the right of inspection and copying under
s. 19.35 (1). Except as authorized or required under
subd. 2., the board shall make sufficient alterations in the summaries to prevent disclosing the identities of individuals or organizations involved in the opinions.
5.05(5s)(f)2.a.a. The board may make records under
subd. 1. public with the consent of the individual requesting the advisory opinion or the organization or governmental body on whose behalf it is requested.
5.05(5s)(f)2.b.
b. A person who makes or purports to make public the substance of or any portion of an advisory opinion requested by or on behalf of the person is deemed to have waived the confidentiality of the request for an advisory opinion and of any records obtained or prepared by the board in connection with the request for an advisory opinion.
5.05(5s)(f)2.c.
c. The board shall make public advisory opinions and records obtained in connection with requests for advisory opinions relating to matters under the jurisdiction of the elections division.
5.05(6a)
(6a) Advisory opinions. Any individual, either personally or on behalf of an organization or governmental body, may make a written or electronic request of the board for an advisory opinion regarding the propriety under
chs. 5 to
12,
subch. III of ch. 13, or
subch. III of ch. 19 of any matter to which the person is or may become a party; and any appointing officer, with the consent of a prospective appointee, may request of the board an advisory opinion regarding the propriety under
chs. 5 to
12,
subch. III of ch. 13, or
subch. III of ch. 19 of any matter to which the prospective appointee is or may become a party. The board shall review a request for an advisory opinion and may issue a formal written or electronic advisory opinion to the person making the request. Except as authorized or required for opinions specified in
sub. (5s) (f) 2., the board's deliberations and actions upon such requests shall be in meetings not open to the public. No person acting in good faith upon an advisory opinion issued by the board is subject to criminal or civil prosecution for so acting, if the material facts are as stated in the opinion request. To have legal force and effect, each advisory opinion issued by the board must be supported by specific legal authority under a statute or other law, or by specific case or common law authority. Each advisory opinion shall include a citation to each statute or other law and each case or common law authority upon which the opinion is based, and shall specifically articulate or explain which parts of the cited authority are relevant to the board's conclusion and why they are relevant. The board may authorize its legal counsel to issue an informal written advisory opinion or to transmit an informal advisory opinion electronically on behalf of the board, subject to such limitations as the board deems appropriate. Every informal advisory opinion shall be consistent with applicable formal advisory opinions issued by the board. If the board disagrees with an informal advisory opinion that has been issued on behalf of the board, the board may withdraw the opinion or issue a revised advisory opinion and no person acting after the date of the withdrawal or issuance of the revised advisory opinion is exempted from prosecution under this subsection if the opinion upon which the person's action is based has been withdrawn or revised in relevant degree. Except as authorized or required under
sub. (5s) (f) 2., no member or employee of the board may make public the identity of the individual requesting a formal or informal advisory opinion or of individuals or organizations mentioned in the opinion. Any person receiving a formal or informal advisory opinion under this subsection who disagrees with the opinion may request a public or private hearing before the board to discuss the opinion. The board shall grant a request for a public or private hearing under this subsection. After hearing the matter, the board may reconsider its opinion and may issue a revised opinion to the person. Promptly upon issuance of each formal advisory opinion that is not open to public access, the board shall publish a summary of the opinion that is consistent with applicable requirements under
sub. (5s) (f).
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 any civil 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 its legal counsel under
sub. (1) (e) to act in its stead, the legal counsel has standing to commence or intervene in such an action or proceeding.
5.05(10)
(10) State election administration plan. With the assistance of the election administration council and approval of the joint committee on finance as provided in this subsection, the board shall adopt and modify as necessary a state plan that meets the requirements of
P.L. 107-252 to enable participation by this state in federal financial assistance programs authorized under that law. The board shall adopt the plan and any modifications only after publishing a class I notice under
ch. 985 or posting on the Internet a statement describing the proposed plan or modification and receiving public comment thereon. After approval of the proposed plan or any modification of the plan by the board, the board shall submit the proposed plan or modification to the joint committee on finance for the approval of the committee. The board may adopt the proposed plan or modification only if the committee approves the proposed plan or modification.
5.05(11)
(11) Aids to counties and municipalities. From the appropriations under
s. 20.511 (1) (t) and
(x), the board may provide financial assistance to eligible counties and municipalities for election administration costs in accordance with the plan adopted under
sub. (10). As a condition precedent to receipt of assistance under this subsection, the board shall enter into an agreement with the county or municipality receiving the assistance specifying the intended use of the assistance and shall ensure compliance with the terms of the agreement. Each agreement shall provide that if the federal government objects to the use of any assistance moneys provided to the county or municipality under the agreement, the county or municipality shall repay the amount of the assistance provided to the board.
5.05(12)
(12) Voter education. The board may conduct or prescribe requirements for educational programs to inform electors about voting procedures, voting rights, and voting technology. The board shall conduct an educational program for the purpose of educating electors who cast paper ballots, ballots that are counted at a central counting location, and absentee ballots of the effect of casting excess votes for a single office.
5.05(13)
(13) Toll-free election information exchange. 5.05(13)(a)(a) The board shall maintain one or more toll-free telephone lines for electors to report possible voting fraud and voting rights violations, to obtain general election information, and to access information concerning their registration status, current polling place locations, and other information relevant to voting in elections.
5.05(13)(b)
(b) The board may maintain a free access system under which an elector who votes under
s. 6.96 or
6.97 may ascertain current information concerning whether the elector's vote has been counted, and, if the vote will not be counted, the reason that it will not be counted.
5.05(14)
(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.
5.05(15)
(15) Registration list. The board is responsible for the design and maintenance of the official registration list under
s. 6.36. The board shall require all municipalities to use the list in every election and may require any municipality to adhere to procedures established by the board for proper maintenance of the list.
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;
1999 a. 182;
2001 a. 109;
2003 a. 35,
265,
266,
327;
2005 a. 177;
2007 a. 1 ss.
2 to
19,
94,
99,
100,
103,
104,
107,
109,
111,
112,
114,
116,
127,
128;
2007 a. 20;
2009 a. 28,
180.
5.05 Cross-reference
Cross-reference: See also
GAB, Wis. adm. code.
5.05 Annotation
Notice to the district attorney, attorney general, or governor is not a prerequisite to a civil forfeiture under sub. (1) (c); notice pursuant to sub. (3) is required only as specified by s. 11.60 (4) or 11.61 (2). State Elections Board v. Hales,
149 Wis. 2d 306,
440 N.W.2d 579 (Ct. App. 1989).
5.05 Annotation
A party being investigated by the board is not entitled under sub. (1) (b) to attend and participate in all depositions conducted by the board. Notice to the party being investigated under sub. (1) (b) is limited to the board's exercise of its subpoena power and does not relate in any way to the conduct of depositions the board may wish to take. State ex rel. Block v. Circuit Court for Dane County, 2000 WI App 72,
234 Wis. 2d 183,
610 N.W.2d 213,
00-0507.
5.05 Annotation
Unless otherwise stated in a specific statute, criminal and civil forfeiture provisions of the election, lobby, and ethics laws can be enforced by a district attorney independently of the board. A referral following an investigation by the board is not required. A district attorney may request prosecutorial or investigative assistance from the attorney general in connection with any duty of the district attorney under those laws. If there has been a referral to the district attorney by the board under sub. (2m) (c) 11., 14., or 15., the district attorney must retain ultimate supervisory authority over the matter referred unless a special prosecutor has been appointed in lieu of the district attorney.
OAG 10-08.
5.05 Annotation
The board and district attorneys possess joint and co-equal authority to investigate possible violations of the election, lobby, or ethics laws and to prosecute civil forfeiture actions under those laws. Unless otherwise stated in a specific statutory provision, the district attorney possesses the authority to prosecute criminal proceedings under those laws. The board has no statutory authority to prosecute criminal proceedings under those laws except as stated in sub. (2m) (i).
OAG 10-08.
5.05 Annotation
For the attorney general to prosecute violations of the election, lobby, and ethics laws there must be a specific statute authorizing the attorney general to independently initiate the prosecution of civil and criminal actions involving violations of those laws unless there is a referral to the attorney general by the board under sub. (2m) (c) 16. or unless the attorney general or an assistant attorney general has been appointed as special prosecutor to serve in lieu of the district attorney.
OAG 10-08.
5.052
5.052
Government accountability candidate committee. 5.052(1)(1) The government accountability candidate committee shall meet 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).
5.052(2)
(2) No person may be nominated by the committee unless the person receives the unanimous approval of the committee.
5.052(3)
(3) Except as provided in
sub. (4), the committee shall submit at least the following number of nominations:
5.052(4)
(4) If a nominee dies or withdraws, or if a nomination of the governor is withdrawn by the governor or rejected by the senate, the committee shall submit an additional nominee to the governor.
5.052 History
History: 2007 a. 1.
5.054
5.054
Duties of the legal counsel. The board's legal counsel shall:
5.054(1)
(1) Whenever a vacancy occurs on the board, call a meeting of the government accountability candidate committee.
5.054(2)
(2) Assist the government accountability candidate committee in the performance of its functions.
5.054 History
History: 2007 a. 1.
5.055
5.055
Election assistance commission standards board. The administrator of the elections division of the board shall, in consultation with the board, appoint an individual to represent this state as a member of the federal election assistance commission standards board. The administrator shall also conduct and supervise a process for the selection of an election official by county and municipal clerks and boards of election commissioners to represent local election officials of this state as a member of the federal election assistance commission standards board. The administrator shall ensure that the members of the federal election assistance commission standards board representing this state shall at no time be members of the same political party. Upon appointment or election of any new member of the federal election assistance commission standards board representing this state, the administrator shall transmit a notice of that member's appointment or election to the officer or agency designated by federal law.
5.055 History
History: 2003 a. 265;
2007 a. 1.
5.056
5.056
Matching program with secretary of transportation. The administrator of the elections division of the board shall enter into the agreement with the secretary of transportation specified under
s. 85.61 (1) to match personally identifiable information on the official registration list maintained by the board under
s. 6.36 (1) with personally identifiable information maintained by the department of transportation.
5.056 History
History: 2003 a. 265;
2007 a. 1.
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.
5.06 Annotation
The plaintiff's failure to comply with the method of review prescribed by this section deprived the circuit court of jurisdiction to hear the plaintiff's original action regarding election irregularities. Kuechmann v. LaCrosse School District,
170 Wis. 2d 218,
487 N.W.2d 639 (Ct. App. 1992).
5.061
5.061
Compliance with federal Help America Vote Act.
