The statement of scope for this rule, SS 089-22, was approved by the Governor on October 20, 2022, published in Register No. 803A3 on November 21, 2022, and approved by the Wisconsin Elections Commission on February 2, 2023. (See PDF for image)FINAL ORDER OF THE WISCONSIN ELECTIONS COMMISSION CREATING RULES
Analysis Prepared by the Wisconsin Elections Commission
1. Statutes Interpreted: Sections 5.02(6m), 5.25(4)(a), 5.35(4), 5.85, 7.41, 6.82, 6.87(5), 6.875(6)(c)1., 6.875(7) 6.34(3), 5.35(5), 7.37(2), 6.86(1)(b), 6.855, 6.88, 9.01(3), 7.52(1)(a), Stats. 3. Explanation of Agency Authority:
Section 7.41(5), Stats., requires the Commission to promulgate rules concerning the conduct of election observers and their interactions with election officials. Section 5.05(1), Stats., established the statutory authority and framework for regulation and administration of elections. It specifically states: “[t]he elections commission shall have the responsibility for the administration of chs. 5 to 10 and 12 and other laws relating to elections and election campaigns, other than laws relating to campaign financing.” Section 5.05(1)(f), Stats., allows the Commission to “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, other than laws regulating campaign financing, or ensuring their proper administration.” Section 227.11(2)(a), Stats., authorizes an agency to promulgate rules interpreting the statutes administered by the agency. 4. Related Statutes or Rules:
Because election observers will observe in person and absentee voting processes, many elections statutes are related. The most directly related statutes are sections 6.875(7), 7.52(1)(a), which directly extend the ability to observe the voting process to voting with Special Voting Deputies and processing of absentee ballots at a board of absentee ballot canvassers location, respectively. Section 9.01(3) explains the ability to observe at a recount. Section 5.25 (4) (a) requires all polling places to be accessible to individuals with disabilities. 5. Plain Language Analysis:
The Commission intends through this order to promulgate its required rule on election observers. The rule intends to clarify and bring uniformity to election observation for the benefit of voters, election officials, and observers. The rule will clarify who is able to observe elections, define the rights and limitations of what election observers may do, differentiate election observers from election inspectors, and create a more stream-lined and accessible set of instructions for election observers to follow during the election process.
Section EL 4.02 defines terms relevant to observing elections, which should allow the process to proceed from known standards. Section, EL 4.03 establishes procedures for election officials so that they may designate areas for observers to observe election processes, make observation areas accessible, limit the number of observers, check in and provide information to observers, warn observers of disruptive or disallowed conduct, and remove observers from the location.
Section EL 4.04 describes the conduct of observers, explaining how to check in as an observer, move between observable locations, ask questions, challenge voters, take or not take images, and the general decorum expected of individuals observing voting. Section EL 4.05 details requirements specific to the different kinds of locations that may be observed, namely polling places, clerk offices or alternate sites, and board of absentee ballot canvassers locations. Additionally, this section covers the observation of Special Voting Deputy served facilities, which is restricted to two individuals and is governed by s. 6.875 (7), Stats., and recounts, which is district from observing voting processes and is governed by s. 9.10 (3), Stats. Section EL 4.07 explains opportunities for media members to arrange with election officials times for reporting on voting. 6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
The Federal Government does not implement a specific approach to election observering and it instead vests broad power to the states to decide individually how to conduct their elections.
7. If Held, Summary of Comments Received During Preliminary Comment Period and at Public Hearing on the Statement of Scope:
The Commission held a virtual open session meeting on the statement of scope on January 17, 2023. Eleven members of the public attended the public meeting, many of whom commented on negative experiences they had as an election observer. The comments included concerns on how to coordinate elections observers from certain parties and concerns on the recommended amount of space that election observers should be positioned away from voters. Additionally, some comments suggested that the Commission assemble an advisory committee of key stakeholders to share insights concerning the election observers scope statement. Additionally, a number of observers commented that they were not allowed to use chairs or bathrooms that were available in the location. Some suggested that observers be allowed to go to the polling place prior to the election to give feedback on the layout of the polling place set up. Generally, the comments were in favor of the Commission addressing the issues presented in rulemaking.
8. Comparison with Similar Rules in Adjacent States:
Illinois, Michigan, Iowa, and Minnesota all have different terms for their versions of election observers, and all have processes outlined in statute that differ from section 7.41, Stats. Rather than election observers Illinois has “Poll-Watchers.” The qualifications and credentials needed to be a Poll-Watcher in Illinois are laid out in the state’s statutes as well as their rights and limitations, and there are strict qualifications to becoming a Poll-Watcher in Illinois.
Anyone, other than a candidate for elective office, can serve as a Poll-Watcher and may observe elections in Michigan. Michigan differentiates its Poll-Watchers from what it calls Election Challengers. Michigan details its rules and parameters in a document provided by the Michigan Bureau of Elections and ratified by the State of Michigan's Secretary of State.
Minnesota sets out in statute how to become an appointed Election Challenger in addition to the rights, limitations, and appointment process to becoming one.
With a method similar to the state of Michigan, Iowa has its poll-watching parameters set in both statute and a guide prepared by the Office of the Iowa Secretary of State. This guide provides a corresponding Iowa statute that solidifies each of the suggested actions for poll-watchers as law. The guide labels a poll-watcher as a person who has official permission to be at the polling place on election day or in the room where absentee ballots are counted before the polls close. If a poll-watcher is acting as a challenger however, Iowa requires a different set of requirements to be allowed to challenge.
9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
The Commission’s proposed rule is based on information obtained during two advisory committee meetings. The Commission held a preliminary hearing on January 17, 2023, and gathered initial thoughts from members of the public, which focused on observers being able to see and hear and having access to chairs and restrooms. After the hearing, the Commission decided to form an advisory committee made up of clerks, poll workers, observers, political party representatives, and election-related organizations. The first advisory committee meeting was held on March 8, 2023, and Committee members provided comments on specific terms within the governing statute, s. 7.41, as well as comments concerning accommodations, challenges, and other observable locations. It also allowed members to present any additional comments. On April 28, 2023, the Commission voted to create a draft based on the first advisory committee meeting, including competing language for the commission to consider in cases for which the Commission received conflicting recommendations from the committee. The second advisory committee meeting was held on June 29, 2023, and discussed the Commission’s initial draft and provided line by line feedback. The draft was revised with conflicting elements still present for the Commission’s consideration. After the second meeting, the Commission met several times to discuss the draft language and to make changes to the document. 10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
N/A
11. Effect on Small Business (initial regulatory flexibility analysis):
N/A
12. Agency Contact Person:
Brandon Hunzicker
P.O. Box 7984, Madison, WI 53703-7984
608-267-0714
13. Place where comments are to be submitted and deadline for submission:
Written comments may be emailed to brandon.hunzicker@wisconsin.gov. While email is preferred, comments can also be mailed to P.O. Box 7984, Madison, WI 53703-7984. The deadline to submit comments concerning the Economic Impact Statement was March 11, 2024. The comment period for the rule text was March 20 to April 24. (See PDF for image)
RULE TEXT
