The supreme court has quite consistently construed the provisions of election statutes as directory rather than mandatory so as to preserve the will of the elector. Lanser v. Koconis, 62 Wis. 2d 86
, 214 N.W.2d 425
When 40 percent 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
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
In chs. 5
, unless the context requires otherwise:
“Automatic tabulating equipment" means apparatus which automatically examines and counts votes recorded on ballots or voting machines and tabulates the results.
“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.
“Block" means an area which is the smallest geographic area used by the U.S. bureau of the census for data collection and tabulation.
“County clerk" includes the executive director of the county board of election commissioners and their authorized representatives.
“Educational officer" means the state superintendent and school board members.
“Elected official" means an individual who is elected to a national, state or local office.
“Election" means every public primary and election.
“Election district" means a municipality that is not divided into wards, except as otherwise provided in s. 8.17 (1) (b)
“Election official" means an individual who is charged with any duties relating to the conduct of an election.
“Election registration official" means an election official assigned under s. 6.28 (1) (a)
to register electors.
“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.
“Federal election" means any election at which a national office appears on the ballot.
“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.
“Governing body" means the common council of a city, board of supervisors of a town or board of trustees of a village.
“Identification" means any of the following documents issued to an individual:
One of the following documents that is unexpired or if expired has expired after the date of the most recent general election:
An identification card issued by a U.S. uniformed service.
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.
An identification card issued by a federally recognized Indian tribe in this state.
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.
In One Wisconsin Now et al. v. Thomsen et al, 15-cv-324, 198 F. Supp. 3d 896
, the United States District Court, Western District of Wisconsin ordered that “the prohibition on using expired, but otherwise qualifying, student IDs is unconstitutional."
An unexpired veterans identification card issued by the veterans health administration of the federal department of veterans affairs.
“Judge" means a court of appeals judge or a judge of a circuit court.
“Justice" means a justice of the supreme court.
“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.
“Local office" means any elective office other than a state or national office.
“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.
“Municipality" means city, town or village.
“National office" means the offices of president and vice president of the United States, U.S. senator and representative in congress.
“Nickname" means a familiar or shortened form of a proper name by which an individual is commonly known.
“Partisan primary" means the primary held the 2nd Tuesday in August to nominate candidates to be voted for at the general election.
“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.
“Polling place" means the actual location wherein the elector's vote is cast.
“Primary" means a primary election.
“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)
“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
“Recognized political party" means a political party which qualifies for a separate ballot or column under s. 5.62 (1) (b)
“Referendum" means an election at which an advisory, validating or ratifying question is submitted to the electorate.
“Registration list" means the list of electors who are properly registered to vote.
“Special election" means any election, other than those described in subs. (5)
, and (22)
, to fill vacancies or to conduct a referendum.
“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.
“Special purpose district" means any local governmental unit other than a county or municipality.
“Special referendum" means any referendum held at a special election which is not held concurrently with the elections described in sub. (5)
, or (22)
“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.
“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.
“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.
“State superintendent" means the state superintendent of public instruction.
“Voting device" means an apparatus other than a voting machine which the elector uses to record his or her votes on a ballot.
“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.
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.
The practices and associated documentation for any of the following purposes:
To identify equipment components and versions of such components.
To test the equipment during its development and maintenance.
To maintain records of equipment errors and defects.
To determine specific equipment changes to be made after the initial qualification of the equipment.
“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.
History: 1971 c. 211
; 1971 c. 304
, 29 (2)
; 1973 c. 280
; 1975 c. 93
; 1977 c. 107
; 1977 c. 427
; 1977 c. 449
; 1979 c. 32
; 1979 c. 260
; 1979 c. 311
; 1981 c. 4
; 1983 a. 484
; 1985 a. 303
; 1985 a. 304
; 1987 a. 391
; 1989 a. 31
; 1991 a. 5
; 1993 a. 140
; 1995 a. 16
; 1995 a. 27
s. 9145 (1)
; 1995 a. 219
; 1997 a. 35
; 2001 a. 16
; 2003 a. 24
; 2005 a. 177
; 2007 a. 1
; 2009 a. 397
; 2011 a. 23
; 2013 a. 165
; 2015 a. 117
Elections commission; definition.
In chs. 5
, “commission" means the elections commission.
History: 2015 a. 118
; 2015 Stats. s. 5.025.
Elections commission; powers and duties. 5.05(1)(1)
The elections commission shall have the responsibility for the administration of chs. 5
and other laws relating to elections and election campaigns, other than laws relating to campaign financing. Pursuant to such responsibility, the commission may:
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 commission at a meeting of the commission. In the discharge of its duties, the commission may cause the deposition of witnesses to be taken in the manner prescribed for taking depositions in civil actions in circuit court.
Bring civil actions to require a forfeiture for any violation of chs. 5
. The commission may compromise and settle any civil action or potential action brought or authorized to be brought by it which, in the opinion of the commission, 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 commission 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 commission 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 ss. 5.08
, forfeiture actions brought by the commission 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 an individual resides within a county if the person's principal place of operation is located within that county. Whenever the commission enters into a settlement agreement with an individual who is accused of a civil violation of chs. 5
or who is investigated by the commission for a possible civil violation of one of those provisions, the commission shall reduce the agreement to writing, together with a statement of the commission's findings and reasons for entering into the agreement and shall retain the agreement and statement in its office for inspection.
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, other than laws regulating campaign financing, 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.
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)
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.
(1e) Actions by the board [commission].
Any action by the commission, except an action relating to procedure of the commission, requires the affirmative vote of at least two-thirds of the members.
NOTE: The correct word is shown in brackets. Corrective legislation is pending.
The commission shall investigate violations of laws administered by the commission 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 commission. Prosecution of alleged criminal violations investigated by the commission may be brought only as provided in par. (c) 11.
, and 16.
and s. 978.05 (1)
. For purposes of this subsection, the commission may only initiate an investigation of an alleged violation of chs. 5
, other than an offense described under par. (c) 12.
, based on a sworn complaint filed with the commission, as provided under par. (c)
. Neither the commission nor any member or employee of the commission, including the commission administrator, may file a sworn complaint for purposes of this subsection.
Any person may file a complaint with the commission alleging a violation of chs. 5
. No later than 5 days after receiving a complaint, the commission shall notify each person who or which the complaint alleges committed such a violation. Before voting on whether to take any action regarding the complaint, other than to dismiss, the commission shall give each person receiving a notice under this subd. 2. a.
an opportunity to demonstrate to the commission, in writing and within 15 days after receiving the notice, that the commission should take no action against the person on the basis of the complaint. The commission may not conduct any investigation or take any other action under this subsection solely on the basis of a complaint by an unidentified complainant.
If the commission finds, by a preponderance of the evidence, that a complaint is frivolous, the commission may order the complainant to forfeit not more than the greater of $500 or the expenses incurred by the commission in investigating the complaint.
If the commission 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 commission shall dismiss the complaint. If the commission believes that there is reasonable suspicion that a violation under subd. 2.
has occurred or is occurring, the commission 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 commission may elect to retain a special investigator. If the commission elects to retain a special investigator, the administrator of the commission shall submit to the commission the names of 3 qualified individuals to serve as a special investigator. The commission may retain one or more of the individuals. If the commission retains a special investigator to investigate a complaint against a person who is a resident of this state, the commission 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 an individual resides within a county if the person's principal place of operation is located within that county. The commission 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 commission may request the commission to issue a subpoena to a specific person or to authorize the special investigator to request the circuit court of the county in which the specific person resides to issue a search warrant. The commission may grant the request by approving a motion to that effect at a meeting of the commission if the commission finds that such action is legally appropriate.
Each special investigator who is retained by the commission shall make periodic reports to the commission, as directed by the commission, but in no case may the interval for reporting exceed 30 days. If the commission authorizes the commission administrator to investigate any matter without retaining a special investigator, the administrator shall make periodic reports to the commission, as directed by the commission, but in no case may the reporting interval exceed 30 days. During the pendency of any investigation, the commission 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 commission at that meeting concerning the progress of the investigation. If, after receiving a report, the commission 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 commission shall not expend more than $25,000 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 commission 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 commission. Unless an investigation is terminated by the commission, at the conclusion of each investigation, the administrator shall present to the commission one of the following: