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Election Law @ Moritz

Election Law @ Moritz


2008 Key Questions for Key States

Wisconsin

The complete research by Election Law @ Moritz for Wisconsin can be found below.

Institutional Arrangements

State Chief Election Authorities

Other appointed individual

Chief election authority: Executive Director of the Elections Division of the Government Accountability Board. W.S.A. 5.05.

Method of selection: Director is appointed by the Board. W.S.A. 5.05. Board members are appointed by the governor with the advice and consent of the Senate. W.S.A. 15.07. Board members cannot have belonged to a political party for at least one year prior to appointment. W.S.A. 15.60.

Current officer: Kevin Kennedy. Voter system vendor to repay state, Milwaukee Journal Sentinel, December 27, 2007. (Last updated 1/1/08)

State High Court Composition

Unknown affiliation/elected

Method of selection: Election. Const. Art. 7, § 4.

Justices: Shirley S. Abrahamson (D), Ann Walsh Bradley (unknown), N. Patrick Crooks (unknown), David T. Prosser, Jr. (R), Patience D. Roggensack (unknown), Louis B. Butler (appointed by D), Annette Kingsland Ziegler (unknown)

Sources:

  • American Judicature Society, Judicial Selection in the States: Wisconsin
  • Biased Refs Blow Calls on Campaigns, Wisconsin State Journal, September 3, 2006.
  • No Foe for Crooks, Capital Times (Madison), November 15, 2005.
  • Crooks again to Run for Court, Capital Times (Madison), September 21, 1995.
  • Democrats Hoping for Turnaround after November, St. Paul Pioneer Press (MN), June 9, 1995.
  • Bradley enters Supreme Court race, Capital Times (Madison), December 19, 1994.
  • Justices clash in Green case, Wisconsin State Journal, April 26, 2007.
  • Roggensack, Brunner to Face Off, Capital Times (Madison), February 19, 2003.
  • Green plans appeal, Milwaukee Journal Sentinel, September 26, 2006.
  • Sun Prairie Attorney Aims for High Court, Capital Times (Madison), September 5, 2007: (“Currently three members are viewed as conservatives, three as liberals and Justice Patrick Crooks as a swing vote.”).

Local Administrator Training

Biannual training/mandatory

At least once every two years, local election officials must attend training given by the state government accountability board. WSA 7.15, 7.315. The government accountability board will prescribe the contents of the training. If local election officials do not attend the training, the GAB will notify the governing board of the relevant jurisdiction.

 

Who tallies precinct results?

County canvassing board - bipartisan

The county board of canvassers tallies precinct results.  The county board of canvassers consists of the county clerk and 2 electors appointed by the clerk.  WS 7.60.  One member of the board must belong to a political party other than that of the clerk.

Who counts provisional ballots?

Local election authority - partisanship unconstrained

The local election authority (typically a municipal clerk) determines whether to count provisional ballots. WSA 6.97. Municipal clerks may be elected or appointed. The city of Milwaukee uses a bipartisan board appointed by the mayor.

Who performs state canvass?

Other individual - appointed

The chairperson of the governmental accountability board performs the state canvass. WS 7.70.  The governmental accountability board consists entirely of retired judges and is appointed by the governor with legislative confirmation.

Local Administrator

Depends

Local elections are primarily run by municipal clerks. WSA 7.15.

However, cities or counties with populations greater than 500,000 use 3-member appointed boards of election commissioners. WSA 7.20. Two members of these boards come from the majority party and one from the minority party. Milwaukee is currently the only jurisdiction that uses such a board. The city's mayor appoints the board members.

Local Administrators' Party Affiliation

Unknown affiliation/elected

City Population Administrator/Affiliation Selection Voting Technology
Milwaukee 578,887 Bipartisan board Appointed by mayor ES&S Eagle OS
Madison 221,551 Maribeth Witzel-Behl (?) [1] Appointed by mayor ES&S Eagle OS
Green Bay 101,203 Doug Daul (?) Appointed by mayor ES&S Eagle OS
Kenosha 95,240 Office of Mike Higgins (?) Appointed Diebold Accuvote OS
Racine 79,392 Janice Johnson-Martin (?) Appointed by mayor ES&S Eagle OS
Appleton 70,217 Cindi Hesse (?) Elected ES&S Eagle OS
Waukesha 67,658 Thomas Neill (?) Elected ES&S Eagle OS
Oshkosh 63,485 Pam Ubrig (?) Appointed by city manager Fidlar (Diebold) AccuVote-ES 2000 OS
Eau Claire 62,570 Donna Austad (?) Appointed by city manager ES&S Eagle OS
Janesville 61,962 Jean Ann Wulf (?) Appointed by city manager ES&S Eagle OS
TOTAL population of these cities 1,402,165 (25.3% of total pop.)

Voter Registration

Registration Deadline

EDR

Voters may register in person on election day. WSA 6.55.

The deadline for traditional registration is the third Wednesday preceding the election. WSA 6.28. Mailed forms will be timely if postmarked by this date. However, Wisconsin also has a “late registration” procedure that allows voters to register in-person with the municipal clerk as late as 5 p.m. or the close of business on the day before the election, whichever is later. WSA 6.29.

Registration Deadline

EDR

Voters may register in person on election day. WSA 6.55. The deadline for traditional registration is the third Wednesday preceding the election. WSA 6.28. Mailed forms will be timely if postmarked by this date. However, Wisconsin also has a “late registration” procedure that allows voters to register in-person with the municipal clerk as late as 5 p.m. or the close of business on the day before the election, whichever is later. WSA 6.29.

Notice of Registration Error

Yes

Rejected applicants must be sent a rejection notice within five days, if possible. WSA 6.32.

Opportunity to Correct after Registration Deadline

Unclear under state law

No official information was found regarding whether voters may submit missing or incorrect information after the deadline for traditional registration (though the Brennan Center reported in 2006 that Wisconsin allows applicants to correct at least some types of errors after the deadline). Voters who submited applications that were rejected cannot circumvent the rejection by using Wisconsin's election day registration procedure, because that procedure is only available to those who have not previously submitted applications.  WSA 6.55.

HAVA matching standards

Exact match standard

Wisconsin uses an exact match standard with the first and last name, date of birth, and driver's license/state ID number when attempting to match the personal information of those who provided their driver's license or state ID numbers. Our source was not sure what standard was used for those who provided their social security numbers instead, but most states seem to use an exact match standard for this type of match.

Source: Phone conversation, Milwaukee Board of Elections.

Will the inability to verify social security number or driver's license number prevent registration?

No consequence

As of August, 2008, Wisconsin has only just implemented its matching program. Until they have more experience using the matching system, administrators have decided to ascribe no consequence whatsoever to a failed match. Unmatched voters are treated exactly the same as matched ones. In future elections, Wisconsin is considering requiring unmatched voters to present ID at the polls or requiring them to cast a provisional ballot.

Source: Phone conversation, Milwaukee Board of Elections.

 

Challenges

Pre-election challenges

Challenges decided by local election official

Any registered voter may challenge another voter's registration by filing an affidavit stating that the voter is not qualified and why. WSA 6.48; Logerquist v. Board of Canvassers for Town of Nasewaupee, 442 N.W.2d 551, 554 (Wis.App., 1989). The clerk will mail notice of the challenge hearing to the challenged voter at the registered address. The parties will appear within one week of the notice at the municipal clerk's office or Board of Election Commissioners. The presiding official will issue judgment immediately at the end of the hearing. In cities of over 500,000 people, if the challenging elector fails to appear within the designated week, the clerk will cancel the challenge. If the clerk determines the challenged voter is not qualified, the clerk will change the voter's registration to ineligible. The statute does not provide for further notice. No person shall be disqualified under this procedure unless the evidence shows beyond a reasonable doubt that the challenged voter is not qualified. WSA 6.325; Logerquist.

Election day challenges

Successfully challenged voter must cast a provisional ballot

Wisconsin statute allows for election day challenges by poll workers and other voters. Detailed regulations lay out the procedures that must be followed.

Poll workers must challenge persons whom they know or suspect are not qualified to vote. WSA 6.92. The statute requires poll workers to have challenged voters take an oath and then ask questions of the voter to test the voter's qualifications. Those questions are laid out in WI ADC § GAB 9.01.

A voter may also challenge the qualifications of a person offering to vote if the voter knows or suspects that person is not qualified. WSA 6.925. The procedure for this type of challenge is spelled out in WI ADC § GAB 9.02. The challenger is asked a series of specific questions to determine the basis for the challenge. Voters who abuse the right to challenge may be removed from the polling place by the poll workers. WI ADC § GAB 9.02; WSA 7.41.

If the voter refuses to answer the poll worker's questions, the poll worker will reject the voter's vote. WSA 6.94. Even if the person's vote is received, this does not necessarily mean it will be counted. If poll workers persist in their challenge even after the challenged voter answers the questions, the ballot will be marked accordingly and counted during canvassing. WSA 6.95. The canvassers' decision may be reviewed either by the county board of canvassers, the board chairperson, or his or her designee. The decision at this level may be appealed using the recount procedures outlined in WSA 9.01. No person shall be disqualified under this procedure unless the evidence shows beyond a reasonable doubt that the challenged voter is not qualified. WSA 6.325.

The ballot of an absentee voter may be challenged for cause and inspectors shall have all the powers and duties they would have under the in-person procedure. WSA 6.93.

Inspectors will have a list at the polls of convicted felons whose rights have not been restored. WSA 301.03. Inspectors will challenge such voters appearing at the polls. In addition, absentee ballots cast by such felons will be challenged under WSA 6.88.

Provisional Ballots

Provisional ballot - name not in poll book

Ballot will count if voter was registered and eligible

Provisional ballots will be counted if officials determine that the voter was qualified to vote in the ward or election district in which the ballot was cast. WSA 6.97(3).

Provisional ballot - voter cast ballot in wrong precinct

N/A

Wisconsin will not allow voters to cast provisional ballots when they attempt to vote in a jurisdiction where they are not registered. Instead, officials will require the voters to complete Election Day Registration. The legal basis for this rule is unknown (see training materials at 38 ).

Provisional Ballot Casting Rate - 2006

0-.25 percent of ballots cast at polls

0.01%

Provisional Ballot Counting Rate - 2006

60-70 percent

62%

Early and Absentee Voting

Convenience Voting

"No excuse" absentee voting only

Wisconsin does not have early voting.

Any voter may cast an absentee ballot.  WSA 6.20.  Voters may request ballots starting 21 days before the election (30 days for fall elections) and ending on 5 p.m. the day before the election.  To count, ballots must be received by 5 p.m. the day before the election.

Voting Technology

Voting Technology

Predominately or 100% OS

City Population Administrator/Affiliation Selection Voting Technology
Milwaukee 578,887 Bipartisan board Appointed by mayor ES&S Eagle OS
Madison 221,551 Maribeth Witzel-Behl (?) [1] Appointed by mayor ES&S Eagle OS
Green Bay 101,203 Doug Daul (?) Appointed by mayor ES&S Eagle OS
Kenosha 95,240 Office of Mike Higgins (?) Appointed Diebold Accuvote OS
Racine 79,392 Janice Johnson-Martin (?) Appointed by mayor ES&S Eagle OS
Appleton 70,217 Cindi Hesse (?) Elected ES&S Eagle OS
Waukesha 67,658 Thomas Neill (?) Elected ES&S Eagle OS
Oshkosh 63,485 Pam Ubrig (?) Appointed by city manager Fidlar (Diebold) AccuVote-ES 2000 OS
Eau Claire 62,570 Donna Austad (?) Appointed by city manager ES&S Eagle OS
Janesville 61,962 Jean Ann Wulf (?) Appointed by city manager ES&S Eagle OS
TOTAL population of these cities 1,402,165 (25.3% of total pop.)

Does state law require a VVPAT?

Yes

Wisconsin does require voting machines to produce VVPAT. WSA 5.91

Polling Place Operations

Who are poll workers?

Appointed by local administrator/some minority party representation

The local election official will appoint poll workers from lists submitted by the two leading political parties. WSA 7.30. The political party that obtained more votes in designated past elections is entitled to one more poll worker than the other leading political party.

Poll worker training

Frequency determined by local officials

Municipal clerks will train election officials and test their knowledge of Election Day procedures, including the use of electronic voting systems, whenever advisable. W.S.A. 7.15. Individuals who do not understand how to use the voting machines or who, without excuse, fail to attend mandatory training sessions will not be allowed to serve. W.S.A. 7.25, 7.30. However, if a trained official falls ill or is otherwise unable to appear at the polls, an untrained worker may fill in for him on a one-time basis. W.S.A. 7.315.

Polling hours extension

Unclear

Wisconsin law requires that votes cast after regular polling hours pursuant to a federal court order be cast on absentee ballots so that they may be identifiable for possible challenge. WSA 6.96. Regular voting hours are 7 a.m. to 8 p.m. according to WSA 6.78. No authority was found for the proposition that Wisconsin state or local officials have the power to extend polling hours and Wisconsin law does not have election-specific emergency provisions.

"Any elector waiting to vote, whether within the polling booth or in the line outside the booth at the time the polls officially close, shall be permitted to vote." WSA 6.78.

Polling place closing times - local times

8:00 PM local time

Polling place closing times - by Eastern time zone

9:00 PM Eastern time

Ballot Security

Voter ID requirements

Only HAVA ID required

Wisconsin requires only the minimum ID required by HAVA.  This requirement applies only to voters who are voting in a Wisconsin federal election for the first time, who registered to vote by mail, who did not produce ID at the point of registration, and whose identities were not verified in the statewide voter registration database by comparing the information on the voter registration form against information contained in social security or state motor vehicles databases. 

Any of the following forms of ID are acceptable: 1) a current and valid operator’s license; 2) a current and valid identification card issued by the department of transportation; 3) any other official identification card or license issued by a Wisconsin governmental body; 4) an official identification card or license issued by an employer with a photograph of the cardholder; 5) a real property tax bill or receipt for the current year or the year preceding the date of the election; 6) a university, college, or technical college card that contains a photograph (does not need residential address if the university provides a certified and current list of students who reside in university housing); 7) a utility bill for the period commencing not earlier than 90 days before the day registration is made; 8) a bank statement; 9) a paycheck; 10) a check or other document issued by a unit of government. WSA 6.34, 6.79. The voter’s proof of residence must contain 1) a current and complete name; and 2) a current and complete residential address.

See here.

Consequences of failure to present ID

Voters must cast provisional ballot

If proof of residence is required and the voter is unable to provide such proof of residence, the voter may cast a provisional ballot. WSA 6.79, 6.97. The voter may provide proof of residence to the municipal clerk or executive director of the municipal board of election commissioners. The municipal clerk or executive director determines whether each individual was qualified to vote in the district where the individual’s ballot is cast.

See here:  http://www.legis.state.wi.us/LRB/pubs/wb/06wb4.pdf

Wisconsin's EDR procedure may not be used as a way to circumvent the ID requirement, because EDR in Wisconsin is available only to those who have not previously submitted a registration form.  W.S.A. 6.55.  In some states (Minnesota), this type of circumvention may be possible.

Follow-up required of voter

Voter must return with ID

The provisional ballot will count if the voter returns with the required ID before 4:00 p.m. the day after the election. W.S.A. 6.97, 7.08. However, note that administrative materials produced by Wisconsin's chief election authority seem to suggest that voters may call in after election day and provide their driver's license numbers as a form of identification (see here).

Emergency Preparedness

Natural Disasters or Emergencies

No election-specific emergency provision

Wisconsin has no laws that specifically affect the conduct of elections in emergency situations.  However, the governor does have emergency powers that might be used to adjust election administration in the event of emergency.  WS 166.03. During a public health emergency, the governor may suspend provisions of administrative rules when following such provisions would hinder the handling of the emergency.  It is unclear whether the general authorization to "handle the emergency" would include an authorization to adjust election procedures.

Wisconsin state election officials have advised local administrators to promulgate contingency plans for common types of election-day emergencies.  The details of such plans are left up to local officials.

Ballot Shortages

Local officials will restock

Wisconsin election law requires that municipal clerks provide substitute paper ballots in substantially the same form as official ballots whenever ballots run out during polling hours on election day. WSA 7.15.

What if touchscreens break down?

Nothing in code

No information was found regarding what to do when touchscreen voting machines break down. The Wisconsin Government Accountability Board's Election Day Manual contains no information (see here).

Post-Election Processes

State certification deadline

Second week of December

The canvass begins on or before the first day of December following a general election, and must conclude within 10 days. WSA 7.70. The governor signs the certificates of election and delivers them to presidential electors before the first Monday after the second Wednesday in December.

Election contest deadline

Within 1 week of state certification

3 days after state certification

Wisconsin law does not authorize election contests per se, but would-be contestants can obtain similar relief by filing what Wisconsin refers to as a recount. This is not the same thing as a traditional recount, but is in fact an administrative hearing in which the board of canvassers works like a trial court by hearing evidence, making findings of fact, and determining the winner. WSA 9.01(6). The deadline for filing the recount is 5 p.m. on the third day after certification of the results.

The canvassing board's decision can be appealed to the local trial court. WSA 9.01(7).

Local count deadline

Between 8 and 14 days after the election

The board will publicly examine the returns no later than 9 a.m. on the Thursday after the election. WSA 7.60. The board will prepare statements showing the number of votes cast and will report one copy to the government accountability board no later than 14 days after the election.

Audit type

Manual

Audits are performed by performing two hand counts, which are then compared against one another, as well as the original vote totals (see here).

The government accountability board audits the performance of each voting system used in the state to determine the error rate for that election. § 7.08. The current procedure is to randomly select 50 jurisdictions across the state, including 5 jurisdictions for each type of voting machine in use (see here). If the error rate exceeds federal standards, the GAB will take remedial action. Discrepancies will require an explanation within 30 days from the voting machine vendor and, if the vendor does not comply, the GAB will suspend use of those voting machines in the state.

In addition to this procedure, the GAB may choose to audit a randomly selected number of jurisdictions in the state, as long as the number is less than 1%.

Audit scope

Other

The government accountability board audits the performance of each voting system used in the state to determine the error rate for that election. § 7.08. The current procedure is to randomly select 50 jurisdictions across the state, including 5 jurisdictions for each type of voting machine in use (see here). If the error rate exceeds federal standards, the GAB will take remedial action. Discrepancies will require an explanation within 30 days from the voting machine vendor and, if the vendor does not comply, the GAB will suspend use of those voting machines in the state.

In addition to this procedure, the GAB may choose to audit a randomly selected number of jurisdictions in the state, as long as the number is less than 1%.

Candidate-requested recounts

Upon request

Candidates may request recounts by 5 p.m. on the third day after certification of the results.  WSA 9.01. 

Administrative Recounts

Not explicitly authorized

Wisconsin election law does not explicitly authorize administrative recounts.

Automatic Recounts

None

Wisconsin does not have automatic recounts.

Defintion of a vote

Concrete standard

Wisconsin law provides examples of many different types of marks that should count as a vote. WSA 7.50; 5.87. It also states that other types of marks should be counted insofar as the voters' intent can be ascertained.

Election Contest Scenario #1: Unverified Ballots

Random withdrawal

If unverified ballots are cast, ballots should be randomly withdrawn and excluded from the count until the number of remaining ballots equals the number of voters who signed the poll book. § 7.51; Roth v. La Farge School Dist. Bd. of Canvassers, 634 N.W.2d 882, 32 (Wis.App., 2001). If officials fail to withdraw ballots during the initial count, it should be done in Wisconsin’s version of an election contest, which is called a recount. W.S.A. 9.01(1)(b)(4); Matter of Hayden, 313 N.W.2d 869, 875 (Wis.App., 1981).

However, if both the initial counting team and the recount teams fail to withdraw the unverified ballots, the state Supreme Court has held that in any appeal of the recount the ballots should not be withdrawn but should remain in the count. Ollmann v. Kowalewski, 300 N.W. 183, 185-186 (Wis., 1941). The court reasoned that that the counting and recount teams might have had a good reason to refuse to withdraw the ballots; for instance, if “some person whose name was on the registry list was not checked as voting whom the election officers personally knew to have voted.” Id. at 186. The court also reasoned that unless there was some showing that the ballot was illegal, it should be counted. Id.  

Election Contest Scenario #2: Provisional Ballots with Technical Mistakes

Unclear

Wisconsin law indicates only that provisional ballots will be counted where officials determine that “the individual is qualified to vote in the ward or election district….” § 6.97. No information was found regarding the effect of paperwork errors by the voter. 

What Court Would Hear a Presidential Contest?

Other

Wisconsin does not have election contests per se, but the Board of Canvassers in a recount works like a trial court by making findings of fact and determining the winner. W.S.A. 9.01 (6). Though the Board’s determination may be appealed, the appeal generally cannot consider any evidence or arguments that were not presented to the Board during the recount. W.S.A. 9.01 (8). Factual findings made by the Board will be overturned on appeal only if they were not supported by substantial evidence. The county clerk and two qualified electors appointed by the clerk constitute the board. 7.60. One member of the board shall be of a political party other than that of the clerk. County clerks are elected once every two years. 59.20.

Who Performs Presidential recounts?

Bipartisan

County Boards of Canvassers conduct the recount. 9.01. The county clerk and two qualified electors appointed by the clerk constitute the board. 7.60. One member of the board shall be of a political party other than that of the clerk. Id. County clerks are elected once every two years. 59.20.