Ch. 5 Note
NOTE: 2005 Wis. Act 451
, which made major revisions to the election laws, including to Chapter 5, contains an extensive prefatory note explaining the changes.
Construction of chs. 5 to 12.
Except as otherwise provided, chs. 5
shall be construed to give effect to the will of the electors, if that can be ascertained from the proceedings, notwithstanding informality or failure to fully comply with some of their provisions.
General provisions of election laws apply.
The general provisions of chs. 5
apply to all elections.
Except as provided in par. (b)
, in every election to choose any officer, each elector has one vote for each office unless clearly indicated otherwise. The person receiving the greatest number of legal votes for the office shall be declared elected, and the canvassers shall so determine and certify.
In an election to fill a nonpartisan state office, if no names are certified to appear on the ballot, no person may be declared elected.
If 2 or more candidates for the same office receive the greatest, but an equal number of votes, the winner shall be chosen by lot in the presence of the board of canvassers charged with the responsibility to determine the election, or in the case of an election for state or national office or metropolitan sewerage commissioner, if the commissioner is elected under s. 200.09 (11) (am)
, in the presence of the chairperson of the elections commission or the chairperson's designee.
If, in a primary, 2 or more candidates receive an equal but not the greatest number of votes so that only one of those candidates with equal votes may advance to the final election, the choice shall similarly be made by drawing lots.
The candidates may, if all those tied for the same office are present, draw for themselves. Upon refusal or absence of any of the candidates, the board of canvassers shall appoint a competent person to draw, and upon the results declare and certify the winner.
If a question is submitted to the electors and an equal number of votes are cast for and against adoption, the question fails adoption.
Election of governor and lieutenant governor. 5.01(5)(a)
In every general election to choose the governor and the lieutenant governor, each elector shall have a single vote applicable to both offices. The persons receiving the greatest number of legal votes cast jointly for them for governor and lieutenant governor shall be declared elected, and the canvassers shall so determine and certify.
In case 2 or more slates have an equal and the highest number of votes for governor and lieutenant governor, the 2 houses of the legislature shall at the next annual session choose by joint ballot one of the slates so having an equal and the highest number of votes for governor and lieutenant governor.
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)
, or by a technical college in this state that is a member of and governed by the technical college system under ch. 38
, 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 Luft v. Evers, 963 F.3d 665
(2020), the U.S. Court of Appeals for the 7th Circuit affirmed the judgment in One Wisconsin Institute, Inc. v. Thomsen, 198 F. Supp. 3d 896
(2016), that “the student-ID provision is invalid" on the alternative ground that the restriction that a student ID card “is not sufficient for voting unless the student also shows proof of current enrollment" 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.
“Overseas elector" means a U.S. citizen who is residing outside of the United States, who is not disqualified from voting under s. 6.03
, who has attained or will attain the age of 18 by the date of an election at which the citizen proposes to vote, who was last domiciled in this state or whose parent was last domiciled in this state immediately prior to the parent's departure from the United States, and who is not registered to vote or voting in any other state, territory, or possession.
“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.