(See PDF for image)DRAFT 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 7.08(3), Stats., requires the Commission has authority to prepare and publish an election manual, that can be “easily understood by the general public explaining the duties of the election officials, together with notes and references to the statutes as the commission considers advisable.” Section 227.11(2)(a), Stats., authorizes the commission 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. 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 the 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 then address the conduct of election officials, explaining how they may limit the number of observers, check in and provide information to observers, establish observation areas so that observers can election processes, make observation areas accessible, warn observers, 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, board of absentee ballot canvassers locations, Special Voting Deputy served facilities, and recounts. Sections 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 of the 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. While there are strict qualifications to becoming a Poll-Watcher in Illinois, that is not the case in Michigan. 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. Contrary to the previously covered states, Minnesota does not authorize poll-watching. Minnesota sets out in statute how to become an appointed Election Challenger in addition to the rights, limitations, and appointment process to becoming one. Lastly, and 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:
N/A
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 is March 11, 2024. An upcoming notice of a public hearing will contain a deadline for comments concerning the rule text. (See PDF for image)
RULE TEXT
SECTION 1. EL 4 is created to read:
EL 4.01 Right to vote. Nothing in this chapter shall be construed to distract, disrupt, obstruct, slow, or prevent a qualified elector from casting a lawful ballot or registering to vote.
