5.01 Annotation The supreme court has consistently construed election statutes as being directory, in keeping with sub. (1) directive that election laws shall be construed to give effect to the will of the electors. Lanser v. Koconis, 62 Wis. 2d 86, 214 N.W.2d 425 (1974).
5.01 Annotation When 40% of registered voters were denied ballots in an election to remove a county seat, the election was set aside even though the outcome probably was not affected. McNally v. Tollander, 100 Wis. 2d 490, 302 N.W.2d 440 (1981).
5.01 Annotation Sub. (1) applies only after an election has been held and the will of the people manifested. City of Chippewa Falls v. Town Of Hallie, 231 Wis. 2d 85, 604 N.W.2d 300 (Ct. App. 1999), 99-0832.
5.01 Annotation Only substantial violations of the election law should operate to vacate an election. Carlson v. Oconto County Board of Canvassers, 2001 WI App 20, 240 Wis. 2d 438, 623 N.W.2d 195, 00-1788.
5.02 5.02 Definitions. In chs. 5 to 12, unless the context requires otherwise:
5.02(1c) (1c) "Automatic tabulating equipment" means apparatus which automatically examines and counts votes recorded on ballots or voting machines and tabulates the results.
5.02(1e) (1e) "Ballot" means a ballot label, sheet of paper or envelope on which votes are recorded. The term also includes a sheet or card, filmstrip or other device listing or containing information relative to offices, candidates and referenda which is placed, projected or composed on the board or screen inside a voting machine.
5.02(1q) (1q) "Block" means an area which is the smallest geographic area used by the U.S. bureau of the census for data collection and tabulation.
5.02(1s) (1s) "Board" means the government accountability board.
5.02(2) (2) "County clerk" includes the executive director of the county board of election commissioners and their authorized representatives.
5.02(3) (3) "Educational officer" means the state superintendent and school board members.
5.02(3m) (3m) "Elected official" means an individual who is elected to a national, state or local office.
5.02(4) (4) "Election" means every public primary and election.
5.02(4c) (4c) "Election district" means a municipality that is not divided into wards, except as otherwise provided in s. 8.17 (1) (b).
5.02(4e) (4e) "Election official" means an individual who is charged with any duties relating to the conduct of an election.
5.02(4m) (4m) "Electronic voting system" means a system in which votes are recorded on ballots, and the votes are subsequently counted and tabulated by automatic tabulating equipment. The term also includes a voting machine on which votes are recorded and tabulated by electronic means.
5.02(4s) (4s) "Federal election" means any election at which a national office appears on the ballot.
5.02(5) (5) "General election" means the election held in even-numbered years on the Tuesday after the first Monday in November to elect United States senators, representatives in congress, presidential electors, state senators, representatives to the assembly, district attorneys, state officers other than the state superintendent and judicial officers, and county officers other than supervisors and county executives.
5.02(6) (6) "Governing body" means the common council of a city, board of supervisors of a town or board of trustees of a village.
5.02(6m) (6m) "Identification" means any of the following documents issued to an individual:
5.02(6m)(a) (a) One of the following documents that is unexpired or if expired has expired after the date of the most recent general election:
5.02(6m)(a)1. 1. An operator's license issued under ch. 343.
5.02(6m)(a)2. 2. An identification card issued under s. 343.50.
5.02(6m)(a)3. 3. An identification card issued by a U.S. uniformed service.
5.02(6m)(a)4. 4. A U.S. passport.
5.02(6m)(b) (b) A certificate of U.S. naturalization that was issued not earlier than 2 years before the date of an election at which it is presented.
5.02(6m)(c) (c) An unexpired driving receipt under s. 343.11.
5.02(6m)(d) (d) An unexpired identification card receipt issued under s. 343.50.
5.02(6m)(e) (e) An identification card issued by a federally recognized Indian tribe in this state.
5.02(6m)(f) (f) An unexpired identification card issued by a university or college in this state that is accredited, as defined in s. 39.30 (1) (d), that contains the date of issuance and signature of the individual to whom it is issued and that contains an expiration date indicating that the card expires no later than 2 years after the date of issuance if the individual establishes that he or she is enrolled as a student at the university or college on the date that the card is presented.
5.02(7) (7) "Judge" means a court of appeals judge or a judge of a circuit court.
5.02(8) (8) "Justice" means a justice of the supreme court.
5.02(8m) (8m) "Labor organization" means any employee organization in which employees participate and which exists primarily for the purpose of engaging in collective bargaining with any employer concerning grievances, labor disputes, wages, hours or conditions of employment, or the promotion and advancement of the professional or occupational standards and the welfare of its members and families and any organization established for the same purposes composed of individuals or affiliates of any such employee organization.
5.02(9) (9) "Local office" means any elective office other than a state or national office.
5.02(10) (10) "Municipal clerk" means the city clerk, town clerk, village clerk and the executive director of the city election commission and their authorized representatives. Where applicable, "municipal clerk" also includes the clerk of a school district.
5.02(11) (11) "Municipality" means city, town or village.
5.02(12) (12) "National office" means the offices of president and vice president of the United States, U.S. senator and representative in congress.
5.02(12m) (12m) "Nickname" means a familiar or shortened form of a proper name by which an individual is commonly known.
5.02(12s) (12s) "Partisan primary" means the primary held the 2nd Tuesday in August to nominate candidates to be voted for at the general election.
5.02(13) (13) "Political party" or "party" means a state committee registered under s. 11.05 organized exclusively for political purposes under whose name candidates appear on a ballot at any election, and all county, congressional, legislative, local and other affiliated committees authorized to operate under the same name. For purposes of ch. 11, the term does not include a legislative campaign committee or a committee filing an oath under s. 11.06 (7).
5.02(14) (14) "Poll list" means the list which is compiled by election officials on election day showing the names and addresses of electors who actually cast votes in an election.
5.02(15) (15) "Polling place" means the actual location wherein the elector's vote is cast.
5.02(16) (16) "Primary" means a primary election.
5.02(16c) (16c) "Proof of identification" means identification that contains the name of the individual to whom the document was issued, which name conforms to the individual's voter registration form, if the individual is required to register to vote, and that contains a photograph of the individual, except as authorized in s. 343.14 (3m) or 343.50 (4g).
5.02(16g) (16g) "Qualified circulator" means a qualified elector of this state or any U.S. citizen age 18 or older who, if he or she were a resident of this state, would not be disqualified from voting under s. 6.03.
5.02(16m) (16m) "Recognized political party" means a political party which qualifies for a separate ballot or column under s. 5.62 (1) (b) or (2).
5.02(16s) (16s) "Referendum" means an election at which an advisory, validating or ratifying question is submitted to the electorate.
5.02(17) (17) "Registration list" means the list of electors who are properly registered to vote.
5.02(19) (19) "Special election" means any election, other than those described in subs. (5), (12s), (21), and (22), to fill vacancies or to conduct a referendum.
5.02(20) (20) "Special primary" means the primary held 4 weeks before the special election except when the special election is held on the same day as the general election the special primary shall be held on the same day as the general primary or if the special election is held concurrently with the spring election, the primary shall be held concurrently with the spring primary.
5.02(20g) (20g) "Special purpose district" means any local governmental unit other than a county or municipality.
5.02(20r) (20r) "Special referendum" means any referendum held at a special election which is not held concurrently with the elections described in sub. (5), (12s), (21), or (22).
5.02(21) (21) "Spring election" means the election held on the first Tuesday in April to elect judicial, educational and municipal officers, nonpartisan county officers and sewerage commissioners and to express preferences for the person to be the presidential candidate for each party in a year in which electors for president and vice president are to be elected.
5.02(22) (22) "Spring primary" means the nonpartisan primary held on the 3rd Tuesday in February to nominate nonpartisan candidates to be voted for at the spring election.
5.02(23) (23) "State office" means the offices of governor, lieutenant governor, secretary of state, state treasurer, attorney general, state superintendent, justice of the supreme court, court of appeals judge, circuit court judge, state senator, state representative to the assembly and district attorney.
5.02(24) (24) "State superintendent" means the state superintendent of public instruction.
5.02(24g) (24g) "Voting device" means an apparatus other than a voting machine which the elector uses to record his or her votes on a ballot.
5.02(24r) (24r) "Voting machine" means a machine which serves in lieu of a voting booth and which mechanically or electronically records the votes cast by electors, who depress levers or buttons located next to the choices listed on a ballot to cast their votes.
5.02(24w) (24w) "Voting system" means:
5.02(24w)(a) (a) The total combination of mechanical, electromechanical, or electronic equipment, including the software, hardware, and documentation required to program, control, and support the equipment, that is used to define ballots, to cast and count votes, to report or display election results, and to maintain and produce any audit trail information.
5.02(24w)(b) (b) The practices and associated documentation for any of the following purposes:
5.02(24w)(b)1. 1. To identify equipment components and versions of such components.
5.02(24w)(b)2. 2. To test the equipment during its development and maintenance.
5.02(24w)(b)3. 3. To maintain records of equipment errors and defects.
5.02(24w)(b)4. 4. To determine specific equipment changes to be made after the initial qualification of the equipment.
5.02(24w)(b)5. 5. To make available any materials to an elector.
5.02(25) (25) "Ward" means a town, village or city subdivision created for the convenience of the electors therein and to facilitate the division of such municipalities into election districts of substantially equal population numbers along common boundaries observing the community of interest of existing neighborhoods and other settlements.
5.05 5.05 Government accountability board; powers and duties.
5.05(1)(1) General authority. The government accountability board shall have the responsibility for the administration of chs. 5 to 12, other laws relating to elections and election campaigns, subch. III of ch. 13, and subch. III of ch. 19. Pursuant to such responsibility, the board may:
5.05(1)(b) (b) In the discharge of its duties and after providing notice to any party who is the subject of an investigation, subpoena and bring before it any person and require the production of any papers, books, or other records relevant to an investigation. Notwithstanding s. 885.01 (4), the issuance of a subpoena requires action by the board at a meeting of the board. A circuit court may by order permit the inspection and copying of the accounts and the depositor's and loan records at any financial institution, as defined in s. 705.01 (3), doing business in the state to obtain evidence of any violation of ch. 11 upon showing by the board of probable cause to believe there is a violation and that such accounts and records may have a substantial relation to the violation. In the discharge of its duties, the board may cause the deposition of witnesses to be taken in the manner prescribed for taking depositions in civil actions in circuit court.
5.05(1)(c) (c) Bring civil actions to require a forfeiture for any violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 or a license revocation for any violation of subch. III of ch. 13 for which the offender is subject to a revocation. The board may compromise and settle any civil action or potential action brought or authorized to be brought by it which, in the opinion of the board, constitutes a minor violation, a violation caused by excusable neglect, or which for other good cause shown, should not in the public interest be prosecuted under such chapter. Notwithstanding s. 778.06, a civil action or proposed civil action authorized under this paragraph may be settled for such sum as may be agreed between the parties. Any settlement made by the board shall be in such amount as to deprive the alleged violator of any benefit of his or her wrongdoing and may contain a penal component to serve as a deterrent to future violations. In settling civil actions or proposed civil actions, the board shall treat comparable situations in a comparable manner and shall assure that any settlement bears a reasonable relationship to the severity of the offense or alleged offense. Except as otherwise provided in sub. (2m) (c) 15. and 16. and ss. 5.08, 5.081, and 19.59 (8), forfeiture and license revocation actions brought by the board shall be brought in the circuit court for the county where the defendant resides, or if the defendant is a nonresident of this state, in circuit court for the county wherein the violation is alleged to occur. For purposes of this paragraph, a person other than a natural person resides within a county if the person's principal place of operation is located within that county. Whenever the board enters into a settlement agreement with an individual who is accused of a civil violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19 or who is investigated by the board for a possible civil violation of one of those provisions, the board shall reduce the agreement to writing, together with a statement of the board's findings and reasons for entering into the agreement and shall retain the agreement and statement in its office for inspection.
5.05(1)(d) (d) Sue for injunctive relief, a writ of mandamus or prohibition, or other such legal or equitable relief as may be appropriate to enforce any law regulating the conduct of elections or election campaigns or ensure its proper administration. No bond is required in such actions. Actions shall be brought in circuit court for the county where a violation occurs or may occur.
5.05(1)(e) (e) Delegate to its legal counsel the authority to intervene in a civil action or proceeding under sub. (9), issue an order under s. 5.06, exempt a polling place from accessibility requirements under s. 5.25 (4) (a), exempt a municipality from the requirement to use voting machines or an electronic voting system under s. 5.40 (5m), approve an electronic data recording system for maintaining poll lists under s. 6.79, or authorize nonappointment of an individual who is nominated to serve as an election official under s. 7.30 (4) (e), subject to such limitations as the board deems appropriate.
5.05(1)(f) (f) 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 or ensuring their proper administration.
5.05(1e) (1e)Actions by the board. Any action by the board requires the affirmative vote of at least 4 members.
5.05(1m) (1m)Legal counsel. The board shall employ outside the classified service an individual to serve as legal counsel who shall perform legal and administrative functions for the board.
5.05(2) (2)Auditing. In addition to the facial examination of reports and statements required under s. 11.21 (13), the board shall conduct an audit of reports and statements which are required to be filed with it to determine whether violations of ch. 11 have occurred. The board may examine records relating to matters required to be treated in such reports and statements. The board shall make official note in the file of a candidate, committee, group or individual under ch. 11 of any error or other discrepancy which the board discovers and shall inform the person submitting the report or statement.
5.05(2m) (2m)Enforcement.
5.05(2m)(a)(a) The board shall investigate violations of laws administered by the board and may prosecute alleged civil violations of those laws, directly or through its agents under this subsection, pursuant to all statutes granting or assigning that authority or responsibility to the board. Prosecution of alleged criminal violations investigated by the board may be brought only as provided in par. (c) 11., 14., 15., and 16. and s. 978.05 (1).
5.05(2m)(c)2.a.a. Any person may file a complaint with the board alleging a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19. If the board finds, by a preponderance of the evidence, that a complaint is frivolous, the board may order the complainant to forfeit not more than the greater of $500 or the expenses incurred by the division in investigating the complaint.
5.05(2m)(c)2.b. b. No complaint alleging a violation of s. 19.45 (13) may be filed during the period beginning 120 days before a general or spring election, or during the period commencing on the date of the order of a special election under s. 8.50, and ending on the date of that election, against a candidate who files a declaration of candidacy to have his or her name appear on the ballot at that election.
5.05(2m)(c)3. 3. Any person to whom subch. III of ch. 13 or subch. III of ch. 19 may have application may request the board to make an investigation of his or her own conduct or of allegations made by other persons as to his or her conduct. Such a request shall be made in writing and shall set forth in detail the reasons therefor.
5.05(2m)(c)4. 4. If the board reviews a complaint and fails to find that there is a reasonable suspicion that a violation under subd. 2. has occurred or is occurring, the board shall dismiss the complaint. If the board believes that there is reasonable suspicion that a violation under subd. 2. has occurred or is occurring, the board may by resolution authorize the commencement of an investigation. The resolution shall specifically set forth any matter that is authorized to be investigated. To assist in the investigation, the board may elect to retain a special investigator. If the board elects to retain a special investigator, the administrator of the ethics and accountability division shall submit to the board the names of 3 qualified individuals to serve as a special investigator. The board may retain one or more of the individuals. If the board retains a special investigator to investigate a complaint against a person who is a resident of this state, the board shall provide to the district attorney for the county in which the person resides a copy of the complaint and shall notify the district attorney that it has retained a special investigator to investigate the complaint. For purposes of this subdivision, a person other than a natural person resides within a county if the person's principal place of operation is located within that county. The board shall enter into a written contract with any individual who is retained as a special investigator setting forth the terms of the engagement. A special investigator who is retained by the board may request the board to issue a subpoena to a specific person or to authorize the special investigator to request a circuit court to issue a search warrant. The board may grant the request by approving a motion to that effect at a meeting of the board if the board finds that such action is legally appropriate.
5.05(2m)(c)5. 5. Each special investigator who is retained by the board shall make periodic reports to the board, as directed by the board, but in no case may the interval for reporting exceed 30 days. If the board authorizes the administrator of the ethics and accountability division to investigate any matter without retaining a special investigator, the administrator shall make periodic reports to the board, as directed by the board, but in no case may the reporting interval exceed 30 days. During the pendency of any investigation, the board shall meet for the purpose of reviewing the progress of the investigation at least once every 90 days. The special investigator or the administrator shall report in person to the board at that meeting concerning the progress of the investigation. If, after receiving a report, the board does not vote to continue an investigation for an additional period not exceeding 90 days, the investigation is terminated at the end of the reporting interval. The board shall not expend more than $10,000 to finance the cost of an investigation before receiving a report on the progress of the investigation and a recommendation to commit additional resources. The board may vote to terminate an investigation at any time. If an investigation is terminated, any complaint from which the investigation arose is deemed to be dismissed by the board. Unless an investigation is terminated by the board, at the conclusion of each investigation, the administrator shall present to the board one of the following:
5.05(2m)(c)5.a. a. A recommendation to make a finding that probable cause exists to believe that one or more violations under subd. 2. have occurred or are occurring, together with a recommended course of action.
5.05(2m)(c)5.b. b. A recommendation for further investigation of the matter together with facts supporting that course of action.
2013-14 Wisconsin Statutes updated through 2015 Wis. Act 113 and all Supreme Court Orders entered before November 19, 2015. Published and certified under s. 35.18. Changes effective after November 19, 2015 are designated by NOTES. (Published 11-19-15)