Chapter 9

9.01(1)(b)4.b. b. The board of canvassers shall then, for each opened absentee ballot envelope that was laid aside as defective under subd. 2., 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.

9.01(1)(b)4.c. c. If, after completing the steps set forth in subd. 4. b., 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.

9.01(1)(b)4.d. d. If, after completing the steps set forth in subd. 4. c., 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.

9.01(1)(b)4.e. e. If, after completing the steps set forth in subd. 4. d., 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)8s. 8s. If an electronic voting system is used in which ballots are distributed to electors, and the board of canvassers makes a determination of elector intent under s. 7.50, the board of canvassers shall add to the result generated by the automatic tabulating equipment any votes counted by the board of canvassers in making its determination.

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. Except as provided in subd. 12., 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(1)(b)12. 12. Except as authorized in s. 6.47 (8), the board of canvassers shall not permit access to the name of any elector who has obtained a confidential listing under s. 6.47 (2) during the recanvass.

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. A candidate or agent designated by a candidate may personally accept delivery of a copy of the petition. Upon such delivery, the clerk or body shall require the candidate or agent to sign a receipt therefor. If a candidate or agent does not personally accept delivery, 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 or the commission chairperson or the chairperson’s designee shall keep complete minutes of all proceedings before the board of canvassers or the chairperson or designee. The minutes shall include a record of objections and offers of evidence. If the board of canvassers or the commission chairperson or the chairperson’s designee receives exhibits from any party, the board of canvassers or the chairperson or designee shall number and preserve the exhibits. The board of canvassers or the chairperson or chairperson’s designee 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 or the chairperson or chairperson’s designee 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 proceedings before the commission chairperson or chairperson’s designee, witness fees shall be paid by the commission.

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)(bm) (bm) Upon the completion of its proceedings, a board of canvassers shall deliver to the commission one copy of the minutes of the proceedings kept under par. (a). In addition, in the case of a recount of an election for state or national office, for each candidate whose name appears on the ballot for that office under the name of a political party, the board of canvassers shall deliver one copy of the minutes to the chief officer, if any, who is named in any registration statement filed under s. 11.0302 by the state committee of that political party, and in the case of a recount of an election for county office, for each candidate whose name appears on the ballot for that office under the name of a political party, the board of canvassers shall deliver one copy of the minutes to the chief officer, if any, who is named in any registration statement filed under s. 11.0302 by the county committee of that political party.

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 commission chairperson or the chairperson’s designee, the board of canvassers making the initial recount shall immediately certify the results to the county board of canvassers or to the commission chairperson or designee. 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 commission chairperson or the chairperson’s designee receives such results, the chairperson or designee shall publicly examine the returns and determine the results not later than 9 a.m. on the 3rd business day following receipt, but if that day is earlier than the latest day permitted for that election under s. 7.70 (3) (a), the commission chairperson or designee may examine the returns and determine the results 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 commission chairperson or the chairperson’s designee whenever a determination is made by the chairperson or designee, 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 commission chairperson or the chairperson’s designee. The appellant shall also serve notice on the commission if the commission chairperson or the chairperson’s designee 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.

9.01(7)(a) (a) The court with whom an appeal is filed shall forthwith issue an order directing each affected county, municipal clerk, or board, and the commission, 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 be served upon each affected county, municipal clerk, or board, the commission, and all other candidates and persons who filed a written notice of appearance before any board of canvassers involved in the recount.

9.01(7)(b) (b) The appeal shall be heard by a judge without a jury. Promptly following the filing of an appeal, the court shall hold a scheduling conference for the purpose of adopting procedures that will permit the court to determine the matter as expeditiously as possible. Within the time ordered by the court, 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). Within the time ordered by the court, the other parties to the appeal shall file an answer. Within the time ordered by the court, the parties to the appeal shall provide the court with any other information ordered by the court. At the time and place ordered by the court, the matter shall be summarily heard and determined and costs shall be taxed as in other civil actions. 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.

9.01(8)(a) (a) Unless the court finds a ground for setting aside or modifying the determination of the board of canvassers or the commission chairperson or chairperson’s designee, it shall affirm the determination.

9.01(8)(b) (b) The court shall separately treat disputed issues of procedure, interpretations of law, and findings of fact.

9.01(8)(c) (c) The court may not receive evidence not offered to the board of canvassers or the commission chairperson or the chairperson’s designee 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.

9.01(8)(d) (d) The court shall set aside or modify the determination of the board of canvassers or the commission chairperson or the chairperson’s designee if it finds that the board of canvassers or the chairperson or chairperson’s designee 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 or the commission chairperson or the chairperson’s designee, the court may not substitute its judgment for that of the board of canvassers or the chairperson or designee 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 commission shall prescribe standard forms and procedures for the making of recounts under this section. The procedures prescribed by the commission shall require the boards of canvassers in recounts involving more than one board of canvassers to consult with the commission staff prior to beginning any recount in order to ensure that uniform procedures are used, to the extent practicable, in such recounts.

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 History History: 1971 c. 251; 1971 c. 304 s. 29 (2); 1971 c. 336; 1973 c. 313; 1973 c. 334 ss. 23 to 26, 57; 1975 c. 41, 422; 1977 c. 394 s. 53; 1977 c. 427; 1979 c. 200; 1979 c. 260 ss. 66 to 68, 93; 1979 c. 311, 355; 1983 a. 183; 1983 a. 484 s. 172 (3); 1983 a. 538; 1985 a. 304; 1987 a. 391; 1989 a. 192; 1993 a. 213; 1997 a. 27; 1999 a. 49, 182; 2001 a. 16; 2003 a. 265, 321; 2005 a. 149, 451; 2007 a. 1, 96; 2011 a. 75, 115; 2015 a. 36, 117; 2015 a. 118 ss. 107 to 119, 266 (10); 2015 a. 261; 2017 a. 120, 366.

9.01 Cross-reference Cross-reference: See also s. EL 6.04, Wis. adm. code.

9.01 Annotation A challenge of compliance with procedures for absent voting is within the board of canvassers’ jurisdiction. Absent connivance, fraud, or undue influence, substantial compliance with statutory voting procedures is sufficient. Johnson v. Hayden, 105 Wis. 2d 468, 313 N.W.2d 869 (Ct. App. 1981).

9.01 Annotation Sub. (8) does not require the party against whom the board of canvassers rules to object to the board’s determination to preserve the issue for judicial review. Clifford v. School District, 143 Wis. 2d 581, 421 N.W.2d 852 (Ct. App. 1988).

9.01 Annotation Post-election eligibility challenges are properly brought under this section. Logerquist v. Board of Canvassers, 150 Wis. 2d 907, 442 N.W.2d 551 (Ct. App. 1989).

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. Discussing the relationship of recount and quo warranto actions. State ex rel. Shroble v. Prusener, 185 Wis. 2d 102, 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. De Broux v. 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 9.10 Recall.

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) (2) Petition requirements.

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)1. 1. The signature is not dated.

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)(em)2. 2. The circulator is not a qualified 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: