9.01 Annotation
The recount statute does not violate due process or equal protection and does not deny the electorate the right to have the winning candidate hold office. The relationship of recount and quo warranto actions is discussed. Shroble v. Prusener,
185 Wis. 2d 103,
517 N.W.2d 169 (1994).
9.01 Annotation
When the board of canvassers' actions in a recount reflected proper application of the statutes, the reviewing court's finding that the board had another option available to it was immaterial. DeBroux v. City of Appleton Board of Canvassers,
206 Wis. 2d 321,
557 N.W.2d 423 (Ct. App. 1996),
96-1287.
9.01 Annotation
This section is the exclusive remedy for any claimed election fraud or irregularity. Generally, to successfully challenge an election, the challenger must show the probability of an altered outcome in the absence of the challenged irregularity. Carlson v. Oconto County Board of Canvassers,
2001 WI App 20,
240 Wis. 2d 438,
623 N.W.2d 195,
00-1788.
9.01 Annotation
A party's failure to timely file an appeal under sub. (6) does not preclude the party from later intervening in another's appeal. To appeal under sub. (6) requires a party to be aggrieved. A party advocating a position that prevailed is not aggrieved. Roth v. LaFarge School District Board of Canvassers,
2001 WI App 221,
247 Wis. 2d 708,
634 N.W.2d 882,
01-0160.
9.01 Annotation
The sub. (6) (a) requirement that a vote-recount appeal to the circuit court be served on the other candidates is fundamental. That a candidate who was not served knew about the appeal and sought and was permitted to intervene in an appeal of a recount was immaterial to the validity of that appeal. The command that “other candidates" be served with the appeal is mandatory rather than directory. Logic v. City of South Milwaukee Board of Canvassers,
2004 WI App 219,
277 Wis. 2d 421,
689 N.W.2d 692,
04-1642.
9.10(1)(1)
Right to recall; petition signatures. 9.10(1)(a)
(a) The qualified electors of the state, of any county, city, village, or town, of any congressional, legislative, judicial, town sanitary, or school district, or of any prosecutorial unit may petition for the recall of any incumbent elective official by filing a petition with the same official or agency with whom nomination papers or declarations of candidacy for the office are filed demanding the recall of the officeholder.
9.10(1)(b)
(b) Except as provided in par.
(c), a petition for recall of an officer shall be signed by electors equal to at least 25 percent of the vote cast for the office of governor at the last election within the same district or territory as that of the officeholder being recalled.
9.10(1)(c)
(c) If no statistics are available to calculate the required number of signatures on a petition for recall of an officer, the number of signatures shall be determined as follows:
9.10(1)(c)1.
1. The area of the district in square miles shall be divided by the area of the municipality in square miles in which it lies.
9.10(1)(c)2.
2. The vote for governor at the last general election in the municipality within which the district lies shall be multiplied by 25 percent of the quotient determined under subd.
1. to determine the required number of signatures.
9.10(1)(c)3.
3. If a district is in more than one municipality, the method of determination under subds.
1. and
2. shall be used for each part of the district which constitutes only a fractional part of any area for which election statistics are kept.
9.10(1)(d)
(d) The official or agency with whom declarations of candidacy are filed for each office shall determine and certify to any interested person the number of signatures required on a recall petition for that office.
9.10(2)(a)(a) Every recall petition shall have on the face at the top in bold print the words “RECALL PETITION". Other requirements as to preparation and form of the petition shall be governed by s.
8.40.
9.10(2)(b)
(b) A recall petition for a city, village, town, town sanitary district, or school district office shall contain a statement of a reason for the recall which is related to the official responsibilities of the official for whom removal is sought.
9.10(2)(c)
(c) A petition requesting the recall of each elected officer shall be prepared and filed separately.
9.10(2)(d)
(d) No petition may be offered for filing for the recall of an officer unless the petitioner first files a registration statement under s.
11.0902 with the filing officer with whom the petition is filed. The petitioner shall append to the registration a statement indicating his or her intent to circulate a recall petition, the name of the officer for whom recall is sought and, in the case of a petition for the recall of a city, village, town, town sanitary district, or school district officer, a statement of a reason for the recall which is related to the official responsibilities of the official for whom removal is sought. No petitioner may circulate a petition for the recall of an officer prior to completing registration. The last date that a petition for the recall of an officer may be offered for filing is 5 p.m. on the 60th day commencing after registration. After the recall petition has been offered for filing, no name may be added or removed. No signature may be counted unless the date of the signature is within the period provided in this paragraph.
9.10(2)(e)
(e) An individual signature on a petition sheet may not be counted if:
9.10(2)(e)2.
2. The signature is dated outside the circulation period.
9.10(2)(e)3.
3. The signature is dated after the date of the certification contained on the petition sheet.
9.10(2)(e)4.
4. The residency of the signer of the petition sheet cannot be determined by the address given.
9.10(2)(e)5.
5. The signature is that of an individual who is not a resident of the jurisdiction or district from which the elective official being recalled is elected.
9.10(2)(e)6.
6. The signer has been adjudicated not to be a qualified elector on grounds of incompetency or limited incompetency as provided in s.
6.03 (3).
9.10(2)(e)7.
7. The signer is not a qualified elector by reason of age.
9.10(2)(e)8.
8. The circulator knew or should have known that the signer, for any other reason, was not a qualified elector.
9.10(2)(em)
(em) No signature on a petition sheet may be counted if:
9.10(2)(em)1.
1. The circulator fails to sign the certification of circulator.
9.10(2)(f)
(f) The filing officer or agency shall review a verified challenge to a recall petition if it is made prior to certification.
9.10(2)(g)
(g) The burden of proof for any challenge rests with the individual bringing the challenge.
9.10(2)(h)
(h) Any challenge to the validity of signatures on the petition shall be presented by affidavit or other supporting evidence demonstrating a failure to comply with statutory requirements.
9.10(2)(i)
(i) If a challenger can establish that a person signed the recall petition more than once, the 2nd and subsequent signatures may not be counted.
9.10(2)(j)
(j) If a challenger demonstrates that someone other than the elector signed for the elector, the signature may not be counted, unless the elector is unable to sign due to physical disability and authorized another individual to sign in his or her behalf.
9.10(2)(k)
(k) If a challenger demonstrates that the date of a signature is altered and the alteration changes the validity of the signature, the signature may not be counted.
9.10(2)(L)
(L) If a challenger establishes that an individual is ineligible to sign the petition, the signature may not be counted.
9.10(2)(m)
(m) No signature may be stricken on the basis that the elector was not aware of the purpose of the petition, unless the purpose was misrepresented by the circulator.
9.10(2)(n)
(n) No signature may be stricken if the circulator fails to date the certification of circulator.
9.10(2)(p)
(p) If a signature on a petition sheet is crossed out by the petitioner before the sheet is offered for filing, the elimination of the signature does not affect the validity of other signatures on the petition sheet.
9.10(2)(q)
(q) Challenges are not limited to the categories set forth in pars.
(i) to
(L).
9.10(2)(r)
(r) A petitioner may file affidavits or other proof correcting insufficiencies, including but not limited to:
9.10(2)(r)4.
4. Failure of the circulator to sign the certification of circulator.
9.10(2)(r)5.
5. Failure of the circulator to include all necessary information.
9.10(2)(s)
(s) No petition for recall of an officer may be offered for filing prior to the expiration of one year after commencement of the term of office for which the officer is elected.
9.10(3)
(3)
State, county, congressional, legislative and judicial offices. 9.10(3)(a)(a) This subsection applies to the recall of all elective officials other than city, village, town, town sanitary district, and school district officials. City, village, town, town sanitary district, and school district officials are recalled under sub.
(4).
9.10(3)(b)
(b) Within 10 days after the petition is offered for filing, the officer against whom the petition is filed may file a written challenge with the official, specifying any alleged insufficiency. If a challenge is filed, the petitioner may file a written rebuttal to the challenge with the official within 5 days after the challenge is filed. If a rebuttal is filed, the officer against whom the petition is filed may file a reply to any new matter raised in the rebuttal within 2 days after the rebuttal is filed. Within 14 days after the expiration of the time allowed for filing a reply to a rebuttal, the official shall file the certificate or an amended certificate. Within 31 days after the petition is offered for filing, the official with whom the petition is offered for filing shall determine by careful examination whether the petition on its face is sufficient and so state in a certificate attached to the petition. If the official finds that the amended petition is sufficient, the official shall file the petition and call a recall election to be held on the Tuesday of the 6th week commencing after the date of filing of the petition. If Tuesday is a legal holiday, the recall election shall be held on the first day after Tuesday which is not a legal holiday. If the official finds that the petition is insufficient, the certificate shall state the particulars creating the insufficiency. The petition may be amended to correct any insufficiency within 5 days following the affixing of the original certificate. Within 5 days after the offering of the amended petition for filing, the official with whom the petition is filed shall again carefully examine the face of the petition to determine sufficiency and shall attach a certificate stating the findings. Upon showing of good cause, the circuit court for the county in which the petition is offered for filing may grant an extension of any of the time periods provided in this paragraph.
9.10(3)(bm)
(bm) Within 7 days after an official makes a final determination of sufficiency or insufficiency of a recall petition under par.
(b), the petitioner or the officer against whom the recall petition is filed may file a petition for a writ of mandamus or prohibition with the circuit court for the county where the recall petition is offered for filing. Upon filing of such a petition, the only matter before the court shall be whether the recall petition is sufficient. The court may stay the effect of the official's order while the petition is under advisement and may order the official to revise the election schedule contained in the order if a revised schedule is necessitated by judicial review. Whenever the recall petitioner files a petition under this paragraph, the officer against whom the recall petition is filed shall be a party to the proceeding. The court shall give the matter precedence over other matters not accorded similar precedence by law.
9.10(3)(c)
(c) The official against whom the recall petition is filed shall be a candidate at the recall election without nomination unless the official resigns within 10 days after the original filing of the petition. Candidates for the office may be nominated under the usual procedure of nomination for a special election by filing nomination papers not later than 5 p.m. on the 4th Tuesday preceding the election and have their names placed on the ballot at the recall election.
9.10(3)(d)
(d) If more than 2 persons compete for a nonpartisan office, a recall primary shall be held. The names of the 2 persons receiving the highest number of votes in the recall primary shall be certified to appear on the ballot in the recall election, but if any person receives a majority of the total number of votes cast in the recall primary, a recall election shall not be held. If the incumbent receives a majority of the votes cast, the incumbent shall be retained in office for the remainder of the term. If another candidate receives a majority of the votes cast, that candidate shall be elected to serve for the residue of the unexpired term of the incumbent. Write-in votes are permitted only at a recall primary or at a recall election in which no primary is held.
9.10(3)(e)
(e) For any partisan office, a recall primary shall be held for each political party which is entitled to a separate ballot under s.
5.62 (1) (b) or
(2) and from which more than one candidate competes for the party's nomination in the recall election. The primary ballot shall be prepared in accordance with s.
5.62, insofar as applicable. The person receiving the highest number of votes in the recall primary for each political party shall be that party's candidate in the recall election. Independent candidates shall be shown on the ballot for the recall election only.
9.10(3)(f)
(f) If a recall primary is required, the date specified under par.
(b) shall be the date of the recall primary and the recall election shall be held on the Tuesday of the 4th week commencing after the recall primary or, if that Tuesday is a legal holiday, on the first day after that Tuesday which is not a legal holiday.
9.10(4)
(4)
City, village, town, town sanitary district, and school district offices. 9.10(4)(a)
(a) Within 10 days after a petition for the recall of a city, village, town, town sanitary district, or school district official, is offered for filing, the officer against whom the petition is filed may file a written challenge with the municipal clerk or board of election commissioners or school district clerk with whom it is filed, specifying any alleged insufficiency. If a challenge is filed, the petitioner may file a written rebuttal to the challenge with the clerk or board of election commissioners within 5 days after the challenge is filed. If a rebuttal is filed, the officer against whom the petition is filed may file a reply to any new matter raised in the rebuttal within 2 days after the rebuttal is filed. Within 14 days after the expiration of the time allowed for filing a reply to a rebuttal, the clerk or board of election commissioners shall file the certificate or an amended certificate. Within 31 days after the petition is offered for filing, the clerk or board of election commissioners shall determine by careful examination of the face of the petition whether the petition is sufficient and shall so state in a certificate attached to the petition. If the petition is found to be insufficient, the certificate shall state the particulars creating the insufficiency. The petition may be amended to correct any insufficiency within 5 days following the affixing of the original certificate. Within 2 days after the offering of the amended petition for filing, the clerk or board of election commissioners shall again carefully examine the face of the petition to determine sufficiency and shall attach to the petition a certificate stating the findings. Immediately upon finding an original or amended petition sufficient, except in cities over 500,000 population, the municipal clerk or school district clerk shall transmit the petition to the governing body or to the school board. Immediately upon finding an original or amended petition sufficient, in cities over 500,000 population, the board of election commissioners shall file the petition in its office.
9.10(4)(d)
(d) Promptly upon receipt of a certificate under par.
(a), the governing body, school board, or board of election commissioners shall call a recall election. The recall election shall be held on the Tuesday of the 6th week commencing after the date on which the certificate is filed, except that if Tuesday is a legal holiday the recall election shall be held on the first day after Tuesday which is not a legal holiday.
9.10(4)(e)
(e) The official against whom the recall petition is filed shall be a candidate at the recall election without nomination unless the official resigns within 10 days after the date of the certificate. Candidates for the office may be nominated under the usual procedure of nomination for a special election by filing nomination papers or declarations of candidacy not later than 5 p.m. on the 4th Tuesday preceding the election and have their names placed on the ballot at the recall election.
9.10(4)(f)
(f) If more than 2 persons compete for an office, a recall primary shall be held. The names of the 2 persons receiving the highest number of votes in the recall primary shall be certified to appear on the ballot in the recall election, but if any person receives a majority of the total number of votes cast in the recall primary, a recall election shall not be held. If the incumbent receives a majority of the votes cast, the incumbent shall be retained in office for the remainder of the term. If another candidate receives a majority of the votes cast, that candidate shall be elected to serve for the residue of the unexpired term of the incumbent. Write-in votes are permitted only at a recall primary or at a recall election in which no primary is held.
9.10(4)(g)
(g) If a recall primary is required, the date specified under par.
(d) shall be the date of the recall primary and the recall election shall be held on the Tuesday of the 4th week commencing after the recall primary or, if that Tuesday is a legal holiday, on the first day after that Tuesday which is not a legal holiday.
9.10(4)(h)
(h) All candidates for any village, town, and town sanitary district office, other than the official against whom the recall petition is filed, shall file nomination papers, regardless of the method of nomination of candidates for town or village office under s.
8.05.
9.10(5)
(5)
Voting method; election results. 9.10(5)(a)
(a) The recall primary or election of more than one official may be held on the same day. If more than one official of the same office designation elected at large for the same term from the same district or territory is the subject of a recall petition, there shall be a separate election contest for the position held by each official. Candidates shall designate which position they are seeking on their nomination papers. Instructions shall appear on the ballot to electors to vote for each position separately.
9.10(5)(b)
(b) The official against whom a recall petition has been filed shall continue to perform the duties of his or her office until a certificate of election is issued to his or her successor. The person receiving a plurality of votes at the recall election or a majority of votes at a primary when authorized under sub.
(3) (d) or
(4) (f) shall be declared elected for the remainder of the term. If the incumbent receives the required number of votes he or she shall continue in office. Except as provided in sub.
(4) (f), if another person receives the required number of votes that person shall succeed the incumbent if he or she qualifies within 10 days after receiving a certificate of election.
9.10(6)
(6)
Limitation on recall elections. After one recall petition and recall election, no further recall petition may be filed against the same official during the term for which he or she was elected.
9.10(7)
(7)
Purpose. The purpose of this section is to facilitate the operation of
article XIII, section 12, of the constitution and to extend the same rights to electors of cities, villages, towns, town sanitary districts, and school districts.
9.10 Cross-reference
Cross-reference: See also ss.
EL 2.09,
2.11, and
6.04, Wis. adm. code.
9.10 Annotation
Striking an entire page of signatures for one invalid signature violated the electorate's right to recall. Stahovic v. Rajchel,
122 Wis. 2d 370,
363 N.W.2d 243 (Ct. App. 1984).
9.10 Annotation
This section applies to members of Congress. 68 Atty. Gen. 140.
9.20
9.20
Direct legislation. 9.20(1)(1)
A number of electors equal to at least 15 percent of the votes cast for governor at the last general election in their city or village may sign and file a petition with the city or village clerk requesting that an attached proposed ordinance or resolution, without alteration, either be adopted by the common council or village board or be referred to a vote of the electors. The individual filing the petition on behalf of the electors shall designate in writing an individual to be notified of any insufficiency or improper form under sub.
(3).
9.20(2)
(2) The preparation and form of the direct legislation petition shall be governed by s.
8.40.
9.20(2m)
(2m) After the petition has been offered for filing, no name may be erased or removed. No signature may be considered valid or counted unless the date is less than 60 days before the date offered for filing.
9.20(3)
(3) Within 15 days after the petition is filed, the clerk shall determine by careful examination whether the petition is sufficient and whether the proposed ordinance or resolution is in proper form. The clerk shall state his or her findings in a signed and dated certificate attached to the petition. If the petition is found to be insufficient or the proposed ordinance or resolution is not in proper form, the certificate shall give the particulars, stating the insufficiency or improper form. The petition may be amended to correct any insufficiency or the proposed ordinance or resolution may be put in proper form within 10 days following the affixing of the original certificate and notification of the individual designated under sub.
(1). When the original or amended petition is found to be sufficient and the original or amended ordinance or resolution is in proper form, the clerk shall so state on the attached certificate and forward it to the common council or village board immediately.
9.20(4)
(4) The common council or village board shall, without alteration, either pass the ordinance or resolution within 30 days following the date of the clerk's final certificate, or submit it to the electors at the next spring or general election, if the election is more than 70 days after the date of the council's or board's action on the petition or the expiration of the 30-day period, whichever first occurs. If there are 70 days or less before the election, the ordinance or resolution shall be voted on at the next election thereafter. The council or board by a three-fourths vote of the members-elect may order a special election for the purpose of voting on the ordinance or resolution at any time prior to the next election, but not more than one special election for direct legislation may be ordered in any 6-month period.
9.20(5)
(5) The clerk shall cause notice of the ordinance or resolution that is being submitted to a vote to be given as provided in s.
10.06 (3) (f).
9.20(6)
(6) The ordinance or resolution need not be printed in its entirety on the ballot, but a concise statement of its nature shall be printed together with a question permitting the elector to indicate approval or disapproval of its adoption.
9.20(7)
(7) If a majority vote in favor of adoption, the proposed ordinance or resolution shall take effect upon publication under sub.
(5). Publication shall be made within 10 days after the election.
9.20(8)
(8) City ordinances or resolutions adopted under this section shall not be subject to the veto power of the mayor and city or village ordinances or resolutions adopted under this section shall not be repealed or amended within 2 years of adoption except by a vote of the electors. The common council or village board may submit a proposition to repeal or amend the ordinance or resolution at any election.
9.20 Annotation
This section implements legislative powers reserved by the people. Subject to certain conditions, a common council has no authority to make an initial judgment of the constitutionality or validity of proposed direct legislation. State ex rel. Althouse v. Madison,
79 Wis. 2d 97,
255 N.W.2d 449 (1977).
9.20 Annotation
A proposal that is administrative, rather than legislative in character, is not the proper subject of initiative proceedings. State ex rel. Becker v. City of Milwaukee Common Council,
101 Wis. 2d 680,
305 N.W.2d 178 (Ct. App. 1981).
9.20 Annotation
A city clerk has a mandatory duty to forward to the common council a sufficient petition and ordinance in proper form. State ex rel. North v. Goetz,
116 Wis. 2d 239,
342 N.W.2d 747 (Ct. App. 1983).
9.20 Annotation
The power of initiative does not extend to legislative decisions that have already been made by the legislative body. Schaefer v. Potosi Village Board,
177 Wis. 2d 287,
501 N.W.2d 901 (Ct. App. 1993).
9.20 Annotation
If statutes establish procedures for the accomplishment of legislation in a certain area, an initiative may not effect legislation that would modify the statutory directives that would bind a municipality if it were legislating in the same area. Section 62.23 establishes such procedures for zoning; zoning may not be legislated or modified by initiative. An ordinance constituting a pervasive regulation of, or prohibition on, the use of land is zoning. Heitman v. City of Mauston,
226 Wis. 2d 542,
595 N.W.2d 450 (Ct. App. 1999),
98-3133.
9.20 Annotation
There are 4 exceptions to the sub. (4) requirement that requested direct legislation be either passed or submitted to the electors: 1) when the proposed direct legislation involves executive or administrative matters, rather than legislative ones; 2) when it compels the repeal of an existing ordinance, or compels the passage of an ordinance in clear conflict with existing ordinances; 3) when it seeks to exercise legislative powers not conferred on a municipality; and 4) when it would modify statutorily prescribed directives that would bind a municipality if it were attempting to legislate in the same area. Mount Horeb Community Alert v. Village Board of Mt. Horeb,
2002 WI App 80,
252 Wis. 2d 713,
643 N.W.2d 186,
01-2217.
9.20 Annotation
A proposed ordinance, initiated by a group of citizens, to require a village to hold a binding referendum prior to the start of construction on any new village building project requiring a capital expenditure of $1 million or more was an appropriate subject of direct legislation. Mount Horeb Community Alert v. Village Board of Mt. Horeb,
2003 WI 100,
263 Wis. 2d 544,
665 N.W.2d 229,
01-2217.
