Wisconsin | Election Law @ Moritz

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Fall 2006 50 Questions project

By Chris Tamms, Nick Kamphaus and Nathan Cemenska, Web Editor. Edited by Nathan Cemenska and Terri Enns.

Date of publication: 9/19/06 (last updated 1//6/07)

Note: The following is a compendium of election administration questions and answers identified by the EL@M team as important for the November, 2006 election. The information was gathered from publicly available sources, and is intended as an objective, nonpartisan summary. It is not intended to constitute legal advice. Those seeking legal advice should retain an attorney.

Eligibility and Registration

1. What are the requirements for eligibility to vote?

To be eligible, people must be citizens eighteen or older, state residents for ten days or more, not adjudicated incompetent or place under guardianship, and not incarcerated or on parole or probation.

W.S.A. 6.02 states that “every U.S. citizen who is 18 or older and has resided in an election district or ward for 10 days before any election where the citizen offers to vote is an eligible elector.” Age is determined at the time of election. W.S.A. 6.05. Residence is determined by W.S.A. 6.10 and is generally where the person’s habitation is affixed and the person intends to return. New residents intending to vote only for president need not comply with the 10 day residency requirement. W.S.A. 6.15.

W.S.A. 6.03 makes ineligible the following groups of people:

People who have been adjudicated incompetent after May 10, 2006, whom the court specifically found to be “incapable of understanding the objective of the elective process.”
People adjudicated incompetent before May 10, 2006, but only if the court also appointed a guardian. If the court did not appoint a guardian, these people may continue to vote. People within the scope of this rule cannot vote regardless of whether the court found them incapable of understanding the elective process
People who have been placed under guardianship, unless the court determines they are competent to vote;
Any person convicted of treason, felony or bribery, unless pardoned or upon the completion of imprisonment and/or probation. Id. Upon release, the jailer shall inform the person he or she may now vote. W.S.A. 304.078.

2. What procedures must eligible voters follow to register?

Wisconsin has four different registration procedures, each very different.

Traditional registration – Voters can register using the traditional procedure by mailing in a registration form postmarked no later than the third Wednesday preceding the election. W.S.A. 6.28. They can also register in person no later than 5 p.m. on the third Wednesday preceding the election. Presentation of identifying documents is not required except for first-time voters who mail their applications (overseas and military voters need not comply with this requirement). However, all voters must include one of the identification numbers specified by the Help America Vote Act to allow state officials to verify the application — otherwise HAVA prevents the state from processing the form. This means all voters must supply their driver’s license numbers or, if they have no driver’s license, their social security numbers. 42 USC 15483(a)(5). If the voter has neither a driver’s license nor social security number, the voter should indicate that and Wisconsin will assign a special number used for voter identification purposes. Id. If voters have but fail to supply the identifying numbers, their forms cannot be processed. They may use one of the other registration processes, but all of them require supplying these identification numbers.

Late registration – Wisconsin allows late in-person registration at the office of the municipal clerk as late as 5 p.m. or the close of business on the day before the election, whichever is later. W.S.A. 6.29. Only voters who have not previously registered or whose name does not appear in the registry may use this procedure. The voter must provide proper proof of residency under W.S.A. 6.34 or obtain the signature of another person in the precinct corroborating the truth of the information submitted on the registration form (this is true regardless of whether the individual is a first-time voter). The corroborating person must provide proper proof of residence (see question 13). According to state training materials, the corroborating person need not be a registered voter (see page 9). Upon completion of the necessary form, the municipal clerk will issue a numbered certificate stating the elector’s name and address. The production of such certificate at the polling place allows the elector to cast his or her vote (this is not strictly required but is evidence to protect against the possibility that poll workers will not believe the voter is registered because the late registration came too late to be reflected in the poll list). The certificate may also be used by mailing it together with an absentee ballot. During the election, election inspectors will record the names of voters who vote using these certificates. After the election, those among the voters who were qualified will be added to the registration list.

Election Day Registration – Voters may also register in person on Election Day. This process is described in W.S.A. 6.55. This process is only available to voters who have not previously filed a registration form or who were registered in another jurisdiction. The voter shall fill out a registration form prescribed by W.S.A. 6.33 and provide proper proof of residence under W.S.A. 6.34. If the voter cannot provide proper proof, the voter may instead obtain the signature of another person in the precinct corroborating the truth of the information submitted on the registration form. The corroborating person must provide proper proof of residence. Voters who appear at the polls claiming to be registered, but whom the registry does not reflect as registered, will also use this procedure prior to voting. People using this procedure will receive notice after the election if their registration was successful. W.S.A. 6.56.

Aside from the polling place, voters may register at any other place designated by the election inspector. If voters register using this procedure, they will be issued a certificate that can be presented at the polls to enable them to vote.

The Wisconsin Department of Corrections will supply a list of disenfranchised felons who are not currently in the state’s registry and who live in the precinct. W.S.A. 6.55. If one of these individuals attempts to register on Election Day, officials will inform them that they are ineligible to vote. If they insist they are eligible, officials will allow them to register and vote, but will challenge the ballot under W.S.A. 6.79.

Absentee registration for hospitalized voters — Hospitalized voters may register at the same time they apply for an absentee ballot. W.S.A. 6.86(3)(a)(2). They may do this by filling out and signing an ordinary registration form. The form must be filed in person not earlier than seven days before the election and not later than 5 p.m. on the day of the election. If the voter cannot physically sign, an agent may do it for him or her, but that agent must present proper proof of residence for the agent. If the agent cannot do this, the agent shall have another person from the jurisdiction corroborate the information on the form and present proper proof of residence. In addition, the voter who is registering must provide proof of residence under W.S.A. 6.34.

Voter Registration and Database Management

3. What process, if any, is the state following in matching voter records in its statewide registration database against Social Security and state motor vehicle records?

Wisconsin is matching incoming applications against state Department of Transportation and federal Social Security measures, but the details are unknown.

The Wisconsin Board of Elections maintains a central database of registered voters known as SVRS (State Voter Registration System). W.S.A. 6.36. The board is required to have an agreement with the state Secretary of Transportation to verify information submitted on incoming voter registration applications against information in the “operating record file database” and the vehicle registration records database maintained by the Secretary. W.S.A. 5.056; 85.61(1). In turn, the state Secretary of Transportation must have an agreement with the federal Social Security Administration to verify the information in the Secretary of Transportation’s databases against those maintained by the SSA. W.S.A. 85.61(2). A thorough search of Wisconsin statutes, administrative codes and Board of Elections materials yielded no further details concerning the use of these databases.

Generally speaking, mailed registration applications and applications received by special appointed registration deputies under W.S.A. 6.26 will be accepted where the municipal clerk finds them “sufficient to accomplish registration” and the clerk has no reliable information to indicate that the proposed elector is not qualified. W.S.A. 6.32. The statutes to not state the standard for determining whether applications submitted in-person to agents other than special registration deputies are sufficient.

In addition to the Transportation and Social Security databases, it appears that Wisconsin potentially uses two other databases to verify voter applications: “Ineligible Voter List” and “Wisconsin Deaths” (see Election Alert #1). The Ineligible Voter List identifies incarcerated felons ineligible to vote under W.S.A. 6.03. Wisconsin Deaths records recent deaths. Election Alert #1 indicates these databases should be used “when registering voters in the office,” but does not specify how. Instructions for use of the Ineligible Voter List indicate that it should be used “during the late registration process” in the registration clerk’s office. However, instructions for use of the Death List indicate it should be used only to review existing registrations, not to deny incoming registration applications. See also Project Update # 58.

It should be noted that Wisconsin authorities are prohibited from taking adverse action against individual as a result of a matching program unless the individual first receives written notification. W.S.A. 19.69. However, a “state authority” may grant an exception to the notice requirement if it finds the information used to perform the matching process is “sufficiently reliable.” There is no indication whether any “state authority” has made this finding with respect to the above-listed databases.

Wisconsin also prohibits persons from being disqualified from voting unless the evidence shows beyond a reasonable doubt that they are ineligible. W.S.A. 6.325 ; Logerquist v. Board of Canvassers for Town of Nasewaupee, 442 N.W.2d 551, 554 (Wis.App., 1989). However, it is unclear whether new registrants who were never found to be “qualified” in the first place can be “disqualified” within the meaning of this statute.

4. If a new voter registration card is rejected because the information it contains is slightly different than the information contained in other state databases concerning that same voter (suppose the bureau of voter vehicles has the name of the driver with that license number as “Andrew Smith” whereas the voter registration card with that license number provided as ID says “Andy Smith”), what opportunity does the voter have to correct that error, and will a provisional ballot cast by that voter count?

Depending on the circumstances, the voter may receive notice and may correct the application or reregister. The voter may reregister as late as Election Day. Provisional votes will count only if the voter provides certain necessary information by 4:00 p.m. the day after the election.

Notice of rejection

The statutes indicate mail-in applications will receive notice of the disposition of their applications. If a mailed registration application or application received by a special registration deputy is accepted, the clerk shall send a confirmation postcard within ten days of receipt of the application. W.S.A. 6.32. Rejected applicants will be sent a notice within five days, if possible, and request that the applicant complete his or her registration attempt. If application is rejected because it was submitted after close of registration, the clerk shall make a good faith effort to notify the applicant that he or she may register in-person under W.S.A. 6.29 (late registration) or at the polls under W.S.A. 6.55 (election day registration). Only mailed applications will be rejected because they were submitted after close of registration (in-person applications occurring after close of registration are allowed under the late registration procedure — see question 3). The statutes are silent as to whether in-person registrants receive notice of the disposition of their applications.

For more information, see training materials (1 , 2, and 3) and question 10.

What the voter can do

The voter can correct his or her application. Alternatively, the voter may re-register under the traditional procedures if the close of registration has not passed. If it has passed, the voter may use late registration or Election Day Registration.

Will a provisional ballot cast by the voter count?

It depends on whether the voter supplies the needed information before the relevant deadline. Before going further, it is important to explain that Wisconsin has a very limited provisional voting system. Unlike some other states, Wisconsin has chosen to attempt to use Election Day Registration, rather then provisional voting, as the primary safeguard against registration problems. That is, if there is a problem with the voter’s original registration, no matter — the voter may just re-register and cast a regular ballot at the polls.

Wisconsin does have provisional voting in two or three circumstances, depending on how one wants to count. Whether a provisional ballot counts in any of these circumstances is totally independent of whether pre-Election Day registration attempts were done properly. The answer depends on the voter’s actions in the future, not in the past. What action is required depends on which of the three provisional voting situations applies.

Provisional voting situation #1: First-time mail-in voter fails to present proper proof of residency at the polls

Voters who register by mail and who have never before voted in Wisconsin in a federal election must present identification in order to vote; the poll lists will be marked accordingly. W.S.A. 6.36(2)(c)(2). If these voters appear at the polls without ID, they will not be allowed to cast a regular ballot. However, they will be allowed to cast a provisional ballot under W.S.A. 6.97 and will be informed that they must provide proof of residence to the municipal clerk or executive director of the municipal board of election commissioners. W.S.A. 7.08 orders the Board of Elections to prescribe a notice to be distributed to voters who cast a ballot under this section. The notice informs voters that “[y]our provisional ballot will not count unless you provide the poll workers with the required information before the polling place closes at 8:00 pm tonight, or you provide the required information to the municipal clerk by 4:00 pm tomorrow.” The ballots of voters who do not comply will not be counted. State training materials indicate that voters who are at the wrong polling place will not be allowed to cast a provisional ballot at all (see page 38).

Provisional voting situation #2: EDR voters fail to provide their driver’s license numbers at the polls

Voters who use Election Day Registration (and other forms of registration) must include one of the identification numbers specified by the Help America Vote Act to allow state officials to verify the application — otherwise HAVA prevents the state from processing the form. This means such voters must supply their driver’s license numbers or, if they have no driver’s license, their social security numbers. 42 USC 15483(a)(5). If the voter has neither a driver’s license nor social security number, Wisconsin will assign a special number used for voter identification purposes. Id. The Wisconsin Board of Elections’ latest statement indicates the Board has interpreted this scheme to require the casting of a provisional rather than regular ballot for those who have a valid driver’s license but cannot or will not state the driver’s license number on their Election Day Registration application (this is regardless of whether the voter presents appropriate proof of residence). This is contrary to the procedure used in the April 4, 2006, election, where officials allowed voters who owned a driver’s license but could not recite the driver’s license number for completion of the registration form to merely give their social security information (see here). The provisional ballot will be cast under W.S.A. 6.97. The voter will receive after voting the same notice described above. The Boards’ statement says that the voter must provide his or her driver’s license number to the municipal clerk by 4:00 pm the day following the election, or the provisional ballot will not be counted. State training materials indicate that voters who are at the wrong polling place will not be allowed to cast a provisional ballot (see page 38).

Provisional voting situation #3: Absentee ballots counted as provisional ballots

Where the poll list is marked to indicate that the voter must provide proof of residence to vote (because this is a first-time mail-in registrant), an absentee ballot received from this voter that does not include proper proof of residence will be processed using procedures under W.S.A. 6.97 that are similar to those used for processing provisional ballots. W.S.A. 6.88(3)(a). The election inspectors shall inform the clerk of the ballot, who will determine whether the voter was eligible to cast a ballot. W.S.A. 6.97(2)-(3). If the clerk determines that the voter was qualified to vote where the ballot was cast, the clerk shall inform the local Board of Canvassers. The Board will then count the ballot if it is otherwise valid. The statute does not specify exactly what the clerk must do to determine whether the voter was properly qualified.

5. If a provisional ballot is rejected because the voter is unregistered according to records in the state’s new centralized voter registration database, what additional procedures (if any) must state officials undertake to see if the omission of this voter from the database is erroneous? (For example, must the state election officials double-check with the state’s bureau of motor vehicles to determine if any new registration forms, although submitted by the voter on time, were delayed in being transmitted to the board of elections?)

The only thing that officials must do to determine whether to count a provisional ballot is confirm whether the voter presents the proper information before 4:00 p.m. the day after the election.

Where the voter was required to cast a provisional ballot for failure to present proper proof of residence at the polls (Provisional voting situation #1, above), the voter must present such proof before the deadline. Where the voter was required to cast a provisional ballot for failure to provide his or her driver’s license number on the Election Day Registration form (Provisional voting situation #2), the clerk must determine whether the voter presented that number before deadline. There is no requirement that officials communicate with another office or make any effort whatsoever to determine whether a claimed previous registration effort was properly made.

The law does not state what the clerk must do to determine whether to count an absentee ballot counted as a provisional ballot (Provisional voting situation #3).

6. Before rejecting a provisional ballot on the ground that the voter is unregistered according to records in the state’s new centralized voter registration database, what procedures (if any) does the state have for requiring its officials to check whether the voter is listed in the database under slightly different information than provided on the provisional ballot (for example, “Andy” instead of “Andrew”; middle name instead of middle initial; 125 Elm “Street” instead of 125 Elm “Road”)?

The state has no procedures for requiring its officials to check the voter registration database, except perhaps when absentee ballots are counted as provisional ballots.

The law does not contain any explicit statements of how those ballots are counted, beyond a general statement that they will be counted if the voter is eligible to cast a ballot (see questions 4, 5).

7. If a provisional ballot is rejected because the signature on the ballot does not match the signature in the state’s centralized voter registration database, does the state have any objective standards for making this signature-mismatching determination?

The counting of Wisconsin provisional ballots is not conditioned upon signature-matching.

8. What opportunity in general does a voter have to determine whether the submission of a new registration form has successfully resulted in the voter’s inclusion in the state’s database of registered voters and, if the voter learns that the submission was unsuccessful, to rectify the problem before Election Day (thereby enabling the voter to cast a regular rather than provisional ballot)?

Depending on the circumstances, the voter may receive notice and may correct the application or reregister. Any voter whose registration was rejected may reregister as late as Election Day and cast a regular ballot.

Notice of unsuccessful registration for mail-in applicants

If a mailed registration application or application received by a special registration deputy is accepted, the clerk shall send a confirmation postcard within ten days of receipt of the application. W.S.A. 6.32. Rejected applicants will be sent a notice within five days, if possible, and request that the applicant complete his or her registration attempt. If application is rejected because it was submitted after close of registration, the clerk shall make a good faith effort to notify the applicant that he or she may register in-person under W.S.A. 6.29 (late registration) or at the polls under W.S.A. 6.55 (election day registration). Only mailed applications will be rejected because they were submitted after close of registration.

Notice of unsuccessful registration for in-person applicants

W.S.A. 6.29 indicates that, when an applicant using the late registration procedure completes the necessary form in person (late registrants must apply in person), the municipal clerk will issue a numbered certificate stating the elector’s name and address. W.S.A. 6.29. This seems to indicate the voter will receive notice in person at the time of submitting the application.

The law does not contain any explicit statements of whether voters who register in-person before the close of elections will receive notice of unsuccessful registration.

Other ways of determining whether registration was successful

Under W.S.A. 6.45, the municipal clerk is required to make the registration list available for public inspection and copying (although only names and addresses are publicly available).

In addition, any observer of an election may view the non-confidential portion of the poll list under W.S.A. 6.45. Any person who wishes may be an observer, without the necessity of any formal process. W.S.A. 7.41.

What the voter can do if registration is unsuccessful

The voter may cure the defects in the original registration attempt or reregister using traditional, late, or Election Day Registration. If the voter follows any of these procedures properly, he or she should be permitted to cast a regular ballot.

9. If it is determined that a new voter registration card was not included in the state’s database of registered voters because of an error committed by a third-party registration group (for example, the group failed to deliver the card on time), will a provisional ballot cast by the voter count?

Not applicable. The conduct of any third-party registration group is irrelevant to whether a provisional ballot is counted. Provisional ballots are counted using the rules explained in question 4.

10. (A) When will a voter’s registration be canceled?

(A) Wisconsin cancels registrations for many reasons: When registration confirmation is returned, when the voter registers in another state, when a voter’s records change from confidential status to non-confidential, when there is a successful challenge, when the voter fails to vote for four years, when the voter changes addresses, dies, or makes a request that his or her registration be canceled, and other reasons.

Return of registration confirmation

If a mailed registration application or application received by a special registration deputy is accepted, the clerk shall send a confirmation postcard within ten days of receipt of the application. W.S.A. 6.32. If the postcard is returned or the clerk is informed that the voter lives at an address other than the one provided, the clerk shall change the voter’s registration from eligible to ineligible. The statute does not provide for further notice. Also, there is no parallel provision to “catch” voters who register in person with the municipal clerk.

Officials will send an audit postcard to voters who used late registration or Election Day Registration. W.S.A. 6.56. If the postcard is returned undeliverable or officials learn the address was apparently improper on the day of election, officials will change the voter’s registration to ineligible and notify the voter. Officials will also refer the matter to the district attorney. The statute does not provide for further notice.

For more information, see training materials (1 , 2, and 3).

Cancellation upon notice of voter’s registration in another state

If the clerk learns the voter is registered to vote in another state, the clerk shall change the voter’s registration from eligible to ineligible. W.S.A. 6.36. After each election, the state Board will contact the chief election officer of each state to determine whether any voters who voted in Wisconsin and possessed an out-of-state license at the time voted in the state where the license was issued. W.S.A. 6.36(5). Officials learn which voters have out-of-state licenses by noting any time a person attempts to use one as identification at the polls (see page 30 of Election Day Manual). The statute does not provide for further notice (but see “Limitations on cancellations” in this question, below).

Cancellation upon expiration of veil protecting voter’s confidentiality

Voters may ask officials to hide their registrations from the eyes of others by obtaining a court order. W.S.A. 6.47. This may happen in domestic violence or other situations. The voter’s registration shall be canceled when the veil expires. The veil expires according to different triggers established by W.S.A. 6.47(4). The clerk shall notify the voter of the change. W.S.A. 6.47(7)(b).

Cancellation on successful challenge by registered elector

Any registered voter may challenge another voter’s registration by filing an affidavit stating that the voter is not qualified and why. W.S.A. 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 to the challenged voter at the registered address. The parties will appear within one week of the notice at the municipal clerk 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.

Cancellation for failure to vote

After each election, officials will identify all qualified voters who have not voted in the previous four years. W.S.A. 6.50. Officials will mail these voters notice that their registrations will be suspended unless they file for a continuation in the next thirty days. If the voter does not respond, officials will change the voter’s status to ineligible. The statute does not provide for further notice. Voters whose registrations are cancelled using this procedure may reregister in the regular fashion, by using the late registration procedure, or using Election Day Registration.

Cancellation due to change of address

If officials receive reliable information that a voter has moved out of the municipality, officials shall mail the voter a notice stating the source of the information. W.S.A. 6.50. If the voter moved or does not file for a continuation of registration, officials will change the voter’s status to ineligible. The statute does not provide for further notice (but see “Limitations on cancellation” in this question, below). Officials may use the US Postal Service’s change of address service to discover voters who have moved. Voters whose registrations are cancelled using this procedure may reregister in the regular fashion, by using the late registration procedure, or using Election Day Registration.

Cancellation due to death

Officials shall check vital statistics reports, including Wisconsin Deaths, and will change the registrations of deceased voters to ineligible. W.S.A. 6.50. This statute explicitly states that this procedure requires no notice. Voters whose registrations are cancelled using this procedure may reregister in the regular fashion, by using the late registration procedure, or using Election Day Registration.

Cancellation if residence is listed as condemned building

If a voter’s address is listed as a condemned building, officials shall investigate and change the voter’s registration to ineligible unless they find a good reason not to do this. W.S.A. 6.50. These voters will receive notice if they left a forwarding address. Voters whose registrations are cancelled using this procedure may reregister in the regular fashion, by using the late registration procedure, or using Election Day Registration.

Cancellation upon request of voter

A voter’s registration will be changed to ineligible upon request of the voter. W.S.A. 6.50. The statute does not provide confirmation of successful cancellation. Voters whose registrations are cancelled using this procedure may reregister in the regular fashion, by using the late registration procedure, or using Election Day Registration.

Rejection for lack of response to notice of failed EDR attempt

If the clerk rejects a voter’s EDR application, the clerk will send notice together with a mail registration form. W.S.A. 6.56(2). If the notice is returned undelivered, or if the postal service notifies the clerk that the voter’s address was apparently improper on the day of the election, the clerk shall notify the district attorney. The statute does not provide for further notice. Technically, this is not a cancellation procedure since the registration application was never accepted, although the voter was permitted to cast a ballot.

Cancellation for double-voting

After the election, officials will conduct an audit to see whether any voters cast two ballots. W.S.A. 6.56(4). Officials will send a notice to such voters that their registrations may be canceled unless they contact the clerk within seven days. The statute does not provide for further notice. The matter may also be referred to the district attorney.

Other cancellations

In addition to the above cancellations, Wisconsin is “cleaning up” its registration files by changing the status of incarcerated felons to ineligible. It may also be canceling some registrations based on database matching programs with the Wisconsin Department of Transportation and federal Social Security Administration (see question 3). Voters whose registrations are cancelled under these database-matching programs should first receive written notification under W.S.A. 19.69, unless a state authority finds that the information used to perform the matching process “sufficiently reliable” (see “Limitations on cancellations” in this question, below).

Limitations on cancellations

It should be noted that Wisconsin authorities are prohibited from taking adverse action against individual as a result of a matching program unless the individual first receives written notification. W.S.A.19.69. However, not all of the above-listed procedures necessarily qualify as “matching programs.” Further, a “state authority” may grant an exception to the notice requirement if it finds the information used to perform the matching process is “sufficiently reliable.” There is no indication whether any “state authority” has made this finding with respect to the programs listed above.

10. (B) What is the last date before an election on which state officials may purge voters from their voter registration database?

No information could be found regarding the last day that a voter’s registration can be canceled. This seems to indicate there is no last day. However, one of Wisconsin’s purging procedures is mandated to start ninety days after each general election. W.S.A. 6.50. This is the process designed to remove voters who have failed to vote for four years. Because of the timing, these voters should not fear removal right before the date of the election.

10. (C) What kind of notice must the state provide voters before purging their registrations from the database?

The notice and opportunity to prevent cancellation that voters receive depends on the reason why their registrations are threatened by cancellation (see (A)). However, any voter canceled using these procedures may reregister using regular registration, late registration, or Election Day Registration.

10. (D) What opportunity must the state give voters to challenge the purge of their registration (either prior to Election Day, or during the process of reviewing provisional ballots)?

11. What procedure has the state adopted to notify voters whether their provisional ballots were counted; what procedures if any has the state adopted to notify the public of the percentage of provisional ballots that have been rejected as ineligible and the specific ground for this rejection?

The Wisconsin Board of Elections “may” maintain a free access system voters can use to determine whether their provisional votes counted and why. W.S.A. 5.05. The Board shall also prescribe a notice to be given to provisional voters (and possibly absentee voters whose ballots are cast as provisional) informing then how to discover this information. W.S.A. 7.08. Each municipal clerk must maintain a free access system voters can use for this purpose. W.S.A. 7.15. At the very least, this system will include a system of toll-free telephone lines. W.S.A. 7.10(8) ; W.S.A. 7.15(10).

There are no known Wisconsin laws requiring that the overall percentage of provisional ballots counted be reported. However, Wisconsin does report this information, which can be found here and here.

12. What types of regulations apply to third-party organizations and individuals who wish to help register voters?

Individuals who are paid to help register voters cannot be paid at “a rate that varies relative to the number of registrations obtained.” W.S.A. 12.13(3)(ze). Third-parties are also generally prohibited from engaging in or assisting in the commission of election fraud.

Identification

13. What is the last date for the submission of new registration forms, and what ID must be submitted with these forms?

The deadline and ID required depend upon a host of factors, including what registration procedure is used.

Traditional registration – Voters can register by mailing in a registration form postmarked no later than the third Wednesday preceding the election. W.S.A. 6.28. They can also register in person no later than 5 p.m. on the third Wednesday preceding the election. Presentation of identifying documents is not required except for first-time voters who mail their applications (military and overseas voters need not comply with this requirement). However, all voters must include one of the identification numbers specified by the Help America Vote Act to allow state officials to verify the application — otherwise HAVA prevents the state from processing the form. This means such voters must supply their driver’s license numbers or, if they have no driver’s license, their social security numbers. 42 USC 15483(a)(5). If the voter has neither a driver’s license nor social security number, the voter should indicate that and Wisconsin will assign a special number used for voter identification purposes. Id. If voters have but fail to supply the identifying numbers, their forms cannot be processed.

Late registration – Wisconsin allows in-person registration at the office of the municipal clerk as late as 5 p.m. or the close of business on the day before the election, whichever is later. W.S.A. 6.29. The voter must provide proper proof of residency under W.S.A. 6.34 or obtain the signature of another person in the precinct corroborating the truth of the information submitted on the registration form (this is true regardless of whether the individual is a first-time voter). The person must also supply driver’s license or social security information, if available, as in the traditional registration process. The forms of voters who have driver’s license or social security numbers but fail to supply them will not be processed.

Election Day Registration — Voters may also register in person on Election Day. W.S.A. 6.55. The voter must provide proper proof of residency under W.S.A. 6.34 or obtain the signature of another person in the precinct corroborating the truth of the information submitted on the registration form (the proof of residence requirement applies regardless of whether the voter is a first-time voter). The person must also supply driver’s license or social security information, if available, as described under “Traditional registration,” above. Voters who have driver’s license or social security numbers but fail to supply them will be required to cast a provisional ballot (see question 4).

Acceptable proof of residence

The following documents are considered acceptable proof of residence under W.S.A. 6.34(3), but only if they contain both the current and complete name of the voter and the current and complete address of the voter, including the name of the voter’s municipality (there is one exception, noted below).

A current and valid driver’s license
A current and valid identification card issued by the Wisconsin Department of Transportation.
Any other official identification card or license issued by a Wisconsin governmental body or unit.
An official identification card or license issued by an employer in the normal course of business that contains a photograph of the cardholder or license holder, but not including a business card.
A real property tax bill or receipt for the current year or the year preceding the date of the election.
Residential lease – but this is not acceptable for first-time mail-in registrants
A university, college, or technical college fee or identification card that contains a photograph of the cardholder. This type of card need not contain the cardholder’s full name and address if the school that issued the card provides to officials prior to the election a certified and current list of students who reside in student housing. For this exception to apply, the list must show current address and officials must verify that the student presenting the card is included on the list.
A utility bill for the period commencing not earlier than 90 days before the day registration is made.
A bank statement.
A paycheck.
A check or other document issued by a unit of government.

(see Election Day Voter Registration Manual, page 8).

14. What ID must be submitted at the polls to cast a regular rather than provisional ballot?

Registered voters need not present ID, unless they are first-time mail-in registrants. Non-registered voters must present proof of residence as part of Election Day Registration.

Voters who the poll list reflects are already registered need not present proof of residence. The only exception is voters who have never before voted in Wisconsin and who registered by mail. W.S.A. 6.34. These voters must present one of the proofs of residence itemized in question 13. However, HAVA exempts these voters from having to present proof of residence at the polls if they included proper proof of residence with their mail-in registrations. Wisconsin’s procedures include this exemption (see Election Day Voter Registration Manual, page 7), although it is not explicitly stated in the state code. These voters may not prove residence by using a corroborator because HAVA and W.S.A. 6.34 don’t allow it. 42 USCA(b)(2). Military and overseas voters need not present proof of residence.

Voters who the poll list reflects are not registered must register at the polls using Election Day Registration. W.S.A. 6.55. They must present one of the forms of proof itemized in question 13 as part of that process. If they do not have proof of residence, they may instead obtain a statement by another person in the same municipality corroborating the information contained in the registration application. The corroborating person must present one of the forms of proof of residence approved by W.S.A. 6.34.

Finally, people who use the late registration procedure very close in time to the election may not be reflected on the poll books as registered voters (see here). These individuals should bring the registration certificate they received after registering just in case, so that they do not have to use Election Day Registration.

15. What ID is necessary to receive an absentee ballot? What ID must be submitted when casting an absentee ballot in order for it to count?

The process for obtaining absentee ballots is controlled by 6.86 and does not require proof of residence. Voters are generally not required to submit proof of residence when casting an absentee ballot. However, if the voter is a first-time voter who registered by mail, then W.S.A. 6.34 and W.S.A. 6.36(2)(c)(2) requires one of the proofs of residence itemized in question 13. W.S.A. 6.87.

A corroborator may not be used to avoid this last requirement. This requirement does not apply to military voters and overseas voters. W.S.A. 6.36(2)(c). If proof of residence is required but not enclosed with the ballot, the absentee ballot will be processed like a provisional ballot under W.S.A. 6.97 (see question 6). W.S.A. 6.88.

Registration/Voter Eligibility

16. In what circumstances if any are previously convicted felons eligible to vote?

W.S.A. 6.03(1)(b) disqualifies “any person convicted of treason, felony, or bribery, unless the person’s right to vote is restored ….” A person’s right to vote is restored through pardon or upon completion of that person’s imprisonment or probation for the crime that resulted in disqualification. W.S.A. 304.078.

17. In what circumstances, either prior to or on Election Day, may the eligibility of a registered voter be challenged by another voter or by an election officials? If challenged, what opportunity does the registered voter have to defend his or her eligibility, and is the consequence of an unsuccessful defense the obligation to cast a provisional ballot, or the denial of any ballot altogether?

(For official training materials regarding challenges, see pp. 57-60 of Election Day Manual.)

Voters may be challenged by a private person by filing appropriate forms with the municipal clerk. In addition, voters may be challenged for cause on Election Day by election inspectors or private individuals. The opportunity to defend oneself and consequences of an unsuccessful defense depend on the procedure used.

Challenge by private person

Any registered voter may challenge another voter’s registration by filing an affidavit stating that the voter is not qualified and why. W.S.A. 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 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. W.S.A. 6.325; Logerquist, supra.

Challenge by election inspector

Under W.S.A. 6.92, each election inspector shall challenge any voter the inspector knows or suspects for cause is not a qualified elector. Logerquist v. Board of Canvassers for Town of Nasewaupee, 442 N.W.2d 551, 554 (Wis.App., 1989). This type of challenge will also be initiated if a private voter at the polls challenges another voter under W.S.A. 6.925. Id. In either case, the inspector shall question the voter under oath using pre-determined questions written by the Wisconsin Board of Elections that go to the voter’s qualifications as an elector. If the voter refuses to answer the questions, the inspector will reject the voter’s vote. W.S.A. 6.94.

If the voter answers the questions but the inspectors do not withdraw the challenge, they will require the voter to swear he or she is eighteen or older, a citizen, a resident for ten or more days, is not attempting to double-vote, is not gambling on the outcome of the election, and is not otherwise disqualified. Id. If the voter refuses to take this oath, the vote will be rejected.

If the voter takes all the oaths, fulfills all applicable registration requirements, and answers the questions in a way that indicates qualification, the person’s vote shall be received. Id.

Even if the person’s vote is received, this does not necessarily mean it will be counted. If inspectors persist in their challenge, the ballot will be marked accordingly and counted during canvassing. W.S.A. 6.95. The canvassers’ decision may be reviewed either by the county board of canvassers, the board’s chair, or his or her designee. The decision at this level may be appealed using the recount procedures outlined in W.S.A. 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. W.S.A. 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. W.S.A. 6.93.

Inspectors will have a list at the polls of convicted felons whose rights have not been restored. W.S.A. 301.03. Inspectors will challenge such voters appearing at the polls (see training materials 1 & 2). In addition, absentee ballots cast by such felons will be challenged under 6.88.

Absentee/Early Voting

18. What if any specific need must a voter assert in order to receive an absentee ballot (or to vote early)? What are the earliest and latest dates by which a voter can submit an absentee ballot by mail, or in person?

Voter may vote absentee for any reason

Any qualified elector who for any reason is unable or unwilling to appear at the polling place in his or her ward may cast an absentee ballot. W.S.A. 6.85; 6.20. Therefore, voters need not assert any specific need to receive an absentee ballot.

Deadlines for requesting ballots

A request for an absentee ballot by mail must be received by the municipal clerk by 5:00pm on the fifth day immediately preceding the election. W.S.A. 6.86(1)(b).

Furthermore, under new Wisconsin law, requests for absentee ballots may be faxed and emailed. These requests must be received by the Friday immediately preceding the election to be effective. W.S.A. 6.86(1)(b). Voters requesting a ballot this way must include an image of their signatures in the request and must return with the voted ballot a copy of the request.6.86(1)(ac).

If the request for an absentee ballot is made in person it can be made up to 5 p.m. on the day preceding the election. W.S.A. 6.86(1)(b). Voters who request a ballot in-person cannot may do so orally, but must submit a written request as well.

Special deadlines and procedures apply for hospitalized voters and voters in nursing homes (see W.S.A. 6.86).

Request to vote absentee for remainder of the year

In addition, voters who would like to vote absentee election after election may request absentee ballots through the end of the year under W.S.A. 6.86(2m). The municipal clerk will continue to mail the voter absentee ballots as long as the voter remains eligible. However, upon receipt of reliable information that the voter no longer qualifies for this service, the clerk will remove the voter from the mailing list and notify the voter within five days. The voter must renew this request at the end of each calendar year.

Deadlines for return of ballots

Completed absentee ballots must be received by the municipal clerk no later than 8 p.m. on Election Day (but W.S.A. 6.221(3) provides that military voters voting under W.S.A. 6.22 may return their ballots as late as 5 p.m. on the seventh day after the election). W.S.A. 6.87.

19. If it were discovered that supporters of the winning candidate had paid (or otherwise improperly induced) voters to cast their absentee ballots for that candidate, and the number of “bought” absentee ballots exceeded that candidate’s margin of victory, would the state judiciary invalidate the election result and rule the runner-up to be the rightful winner?

Yes.

Generally speaking, Wisconsin courts apply the “outcome test” to election lawsuits where losing candidates claim entitlement to an office: The candidate-plaintiff must “prove that the will of the electors would have favored the opposite result actually reached.” McNally v. Tollander, 302 N.W.2d 440, 447 (Supreme Court of Wisconsin, 1981); see also Carlson v. Oconto County Bd. of Convassers, 623 N.W.2d 195, 198 (Wis.App., 2000)(“[O]ur supreme court has approved the outcome test for most election irregularities.”). The scenario described above assumes that the will of voters was thwarted by outright fraud and therefore would certainly result in invalidation of the election result. The successful challenger would then be entitled to the disputed office under Wisconsin’s “quo warranto” challenge statute. W.S.A. 784.09.

The quo warranto procedure should not be confused with the W.S.A. 9.01 recount procedure, which is the exclusive remedy in cases involving mistakes in the canvassing process. State v. Prusener, 517 N.W.2d 169, 174 (Supreme Court of Wisconsin, 1994). However, see Carlson, supra, at 197, interpreting Prusener to say that the recount procedure is the exclusive remedy for not only cases involving mistakes in canvassing, but also for cases involving “any claimed election fraud or irregularity.” The Carlson court made this interpretation despite the fact that the Prusener court explicitly stated that its holding did not preclude quo warranto as a remedy for unlawful usurpations of office, but only “as a remedy in cases involving mistakes in the canvassing process.” Prusener at 174.

20. (A) What are the procedures for counting absentee/early ballots, as opposed to regular ballots?

After receiving the absentee ballots, the municipal clerk will secure them in a carrier envelope and deliver them to election inspectors at the polls on Election Day. W.S.A. 6.88. The election inspectors will determine that the voter properly completed the certification on the return envelope, that the voter is qualified in the relevant jurisdiction (including that the voter is not disqualified for felony conviction), and that the voter has not already voted in this election. If inspectors are able to make these determinations, they shall mark to poll list to indicate this voter has cast an absentee ballot. The consequences for the voter if inspectors are not able to make these determinations are discussed in part C, infra. Finally, the inspectors shall verify that the ballot was endorsed by the issuing clerk (the statute does not state what will happen if the clerk did not endorse it, but page 49 of the Election Day Manual indicates the ballot will still be counted).

The inspectors shall then determine whether proof of residence, if required, was provided, and whether any proof provided contains the same address as that contained on the poll list. Id. If proof was required but not provided or if the addresses are different, the ballot will be processed as a provisional ballot (see question 4). If the ballot does not suffer from either of these defects the inspectors will place the ballot into the ballot box and enter the elector’s name and voting number on the poll list as if the elector had voted in person.

See generally Election Day Manual, p. 43.

20. (B) Who, if anyone, can observe the counting of absentee ballots?

The counting of absentee ballots occurs at public polling places and may be observed by members of the public, all of whom have a right to observe election activity at polling places. W.S.A. 7.41. This includes members of the public who intend to scrutinize and challenge absentee ballots they believe should not count. WI ADC ElBd 9.04. However, candidates may not be present at the polls. W.S.A. 7.41.

20. (C) On what grounds may election officials reject an absentee ballot as ineligible for counting?

Absentee ballots will be rejected for at least eleven reasons.

Absentee ballots will not be counted when inspectors find any of the following to apply:

The voter did not sufficiently complete the certification contained on the ballot envelope (a general statement required by W.S.A. 6.87 that says the voter is registered and eligible and marked the ballot in front of a witness);
the applicant is not a qualified elector in the district (including due to felony conviction);
the ballot envelope is open or has been opened and resealed;
the ballot envelope contains more than one ballot of any one kind;
when the certificate of an elector who received an absentee ballot by facsimile transmission or electronic mail is missing;
if proof is submitted to inspectors that an elector voting an absentee ballot has since died.

W.S.A. 6.88; see also training materials, pp. 44-49. Inspectors shall note on each ballot the reason why it was not counted, seal the rejected ballots in an envelope, and return them to the municipal clerk. W.S.A. 6.88.

In addition, one court has held that the requirements of W.S.A. 6.86, 6.87(3)-(7) and 9.01(1)(b)(2.) and (4.) are mandatory and ballots that do not conform to these requirements must not be included in the certified result of any election. Lee v. Paulson, 623 N.W.2d 577, ¶ 7 (Wis.App., 2000). This means that a ballot will be rejected if officials find it any of the following are true (this is a non-exclusive list):

the clerk provided the ballot to the voter without requiring a written application; W.S.A. 6.86(1);
a first-time mail-in registrant voter failed to provide proper identification, but page 46 of the official Election Day Manual indicates these ballots will not be rejected but will be processed as provisional ballots (see questions 13, 15, for identification requirements and question 4 for information regarding provisional voting); W.S.A. 6.87(4);
in a primary, the voter marked the ballots for candidates of more than one party; Id.;
if the voter requested a ballot by fax or email, the voter failed to return with the completed envelop a signed copy of the request; Id.;
a candidate attempted to serve as witness to the execution of the ballot required by W.S.A. 6.87(4); W.S.A. 6.87(7).

However, not all procedures in W.S.A. 6.86 and 6.87 have been construed as mandatory, particularly where the complained defects were out of the control of the voter. See generally Soderbloom v. Manske, 321 N.W.2d 367 (Wis.App., 1982); Matter of Hayden, 313 N.W.2d 869 (Wis.App., 1981); Lanser v. Koconis, 212 N.W.2d 425 (Supreme Court of Wisconsin, 1974).

20. (D) What notification, if any, must the election officials provide — either to the voters who cast these ballots or to the public — that these absentee ballots were rejected?

The statutes neither require, nor prohibit, officials from giving notice to voters of how their ballots were treated. No information regarding this topic could be located in the administrative code or State Election Board’s website.

21. What pre-certification procedures, if any — in other words, separate from post-certification judicial contest of the outcome of the election itself — exist for disputing the exclusion of absentee ballots?

Any person who observes inspectors improperly exclude an absentee ballot (or deviate from the election laws in any way) may cause an investigation to occur by filing a verified complaint with the state Elections Board under W.S.A. 5.05(3). The Board may investigate, schedule a hearing, and issue an order requiring officials to conform their conduct to the law. W.S.A. 5.06. In cases of emergency, the Board may schedule the hearing with less than ten days notice, and may also issue what amounts to a temporary restraining order before the hearing can be conducted. ElBd 10.06; 10.09. If the official does not cooperate with the Board’s order, the Board may “restrain” the official. W.S.A. 5.06. The court’s decision may be appealed to the local circuit court within thirty days, but that will not stay the Board’s order unless the circuit court specifies this.

If a voter files a complaint with the Board of Elections and the Board does not take action within ten days, the voter may personally file suit. W.S.A. 11.66; Wisconsin Educ. Ass’n Council v. Wisconsin State Elections Bd., 610 N.W.2d 108, 114 (Wis.App., 2000).

Parties who do not file complaints with the state Election Board, or who do file complaints but do not wait at least ten days for the Election Board to take action before filing suit in circuit court, deprive the circuit court of jurisdiction to hear the case. Kuechmann v. School Dist. Of La Crosse, 487 N.W.2d 639, 641 (Wis.App., 1992).

For further procedural details of the above process, see ElBd 10.01-10.10.

Voters who observe improprieties may also file petitions with the local Board of Commissioners or District Attorney requesting a civil action be brought to obtain an injunction. W.S.A. 11.60(5).

In addition to filing complaints, ElBd 4.01 permits W.S.A. 7.41 observers to note any irregularities and transmit their notes to the Board of Commissioners within three days of the election. This scrutiny may reduce the incidence of deviations from the proper procedures.

22. Under what circumstances if any may a voter who has requested an absentee ballot nonetheless cast a regular or provisional ballot at the polling place on Election Day? (Only when the voter has not received the requested absentee ballot, or for another reason, such as the voter wishes to change a vote from one candidate to another?).

Voters who requested an absentee ballot will be allowed to vote in person, but only if they have not actually cast the absentee ballot they requested.

No relevant law was found. However, the Election Day Manual issued by the State Election Board shows that Wisconsin has considered this issue and taken measures to address it (see page 26). The Manual indicates that the poll books contain marks placed by the municipal clerk indicating which voters requested absentee ballots, and that such voters should be allowed to vote at the polls regardless of whether such a mark appears by their names. However, such voters will not be allowed to vote in-person if a different mark required by W.S.A. 6.88 appears next to their names to indicate the voter has already cast an absentee ballot that was counted.

It is possible that a voter might return a completed absentee ballot and then be allowed to cast an in-person ballot, provided that at the time the voter appears at the polls the inspectors’ have not yet counted the absentee ballot and recorded this fact. However, in that case, the voter’s in-person vote voids his or her absentee vote, which will not be counted (see page 26 of Election Day Manual).

Double-voting is a crime under W.S.A. 12.13(e).

23. What procedures if any does the state have for preventing double-voting by a voter who has cast both an absentee and an in-person ballot?

Officials place a mark in the poll book whenever a voter requests an absentee ballot (see Election Day Manual, page 26), casts an absentee ballot (see W.S.A. 6.88), or casts a regular vote (see W.S.A. 6.79). Voters will be turned away from the polls if the poll book indicates they have already cast an absentee ballot (see Manual). In addition, when a voter successfully casts an in-person ballot, any absentee ballot cast by that person will become void and will not be counted. Id.

Double-voting is a crime under W.S.A. 12.13(e).

Poll Workers/Polling Procedures

24. Who may observe the voting process at polling places on Election Day?

Anybody.

W.S.A. 7.41 states that “any member of the public may be present at any polling place for the purpose of observation of an election, except a candidate at that election.” However, this statute also gives the officials the ability to “reasonably limit” the number of people who represent the same organization who are present at the same time. The election inspectors may also limit where the observers may stand to watch the proceedings. The areas, however, must be positioned to allow full viewing access to polling place procedures.

People observing the election may take notes of the proceedings and report irregularities to the elections board (see ElBd 4.01) and may initiate a challenge of any elector appearing at the polls (see question 17).

25. What procedures and protocols, if any, does the state have in place to assure that poll workers and other local election officials follow statewide rules uniformly and do not engage in county-by-county, or even precinct-by-precinct, variation in the administration of rules concerning voter eligibility and the counting of ballots?

Wisconsin law will require training for election officials prior to the 2008 elections, but until then requires no training, except in the case of chief election inspectors. However, the State Election Board does issue memoranda, election manuals and other materials to assist officials in performing their duties uniformly.

Training of election inspectors and municipal clerks

Municipal clerks will train election officials and test their knowledge of Election Day procedures, including the use of electronic voting systems. W.S.A. 7.15. In addition, municipal clerks themselves must attend training given by the state Board of Elections under W.S.A. 5.05(7). W.S.A. 7.315. The contents of both types of training will be prescribed by the state Board of Elections. However, a July summary of Wisconsin’s updated election laws indicates that the Board has not yet promulgated these rules.

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. Individuals who do not understand how to use voting machines shall not be allowed to serve. W.S.A. 7.25. 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.

The above rules do not apply to elections conducted in 2006 and 2007. WI LEGIS 451, s 181(9). They first take effect for 2008 elections, requiring officials to be trained before the first election in 2008.

Training of chief inspectors

Attending at least one training session is mandatory before being allowed to serve, although taking an examination is not. W.S.A. 7.31. In addition, officials must attend at least one further training session every two years. The Board will prescribe the training, but will not require officials to take an examination.

As with the training requirements for lesser election inspectors, these requirements do not take effect until the 2008 elections. WI LEGIS 451, s 181(9). However, a July summary of Wisconsin’s updated election laws indicates that chief election inspectors were already required to complete six hours of training every two years. The basis for making this statement could not be found.

Other

In addition, the state Board of Electors may produce and distribute over the internet a special training video. W.S.A. 7.315. It is unknown whether the Board has yet produced such a video.

The municipal clerk “shall inspect systematically and thoroughly the conduct of elections in the municipality so that elections are honestly, efficiently and uniformly conducted.” W.S.A. 7.15.

The state Board of Elections periodically issues memoranda and election manuals to assist officials in performing their duties. See, for instance, the Election Day Manual and Election Day Registration Manual.

26. (A) What rules exist determining the number of voting machines?

Wisconsin has no rules explicitly determining the number of voting machines that must be at a polling place.

W.S.A. 5.35 specifies that there is supposed to be one booth for every 200 electors who voted at the last general election, but does not state that there must be a voting machine in each of those booths. Rather, the code only provides that there “may” be more than one voting machine at each polling place. W.S.A. 5.37. At polling places that have machines that use “ballots distributed to electors” (presumably including optical scan machines), the municipality will supply a sufficient number of voting booths as provided in W.S.A. 5.35. W.S.A. 5.78. But again, the code does not state there will be machines in each of those booths, indicating the booths are only for physically marking the ballots before they are processed by machines.

26. (B) What rules exist to determine the number of poll workers?

Generally, seven.

There shall be seven inspectors at each polling place at any given time. W.S.A. 7.30. However, municipalities may reduce the number to five in polling places that use voting machines. Municipalities may appoint additional inspectors in precincts that use more than one voting machine or that service multiple wards. Municipalities also may appoint a “greeter” inspector who may fill in for other inspectors if they have to leave.

The code does not state whether the chief inspector should be counted in the required total number of election inspectors.

26.(C) What rules exist to determine the number of provisional ballots?

The municipal clerk should provide a sufficient number of ballots to each precinct based on the number of anticipated voters.

Wisconsin law does not explicitly address the question of how many provisional ballots should be provided to polling places. However, W.S.A. 7.15 does provide that the municipal clerk shall provide substitute ballots when the supply at the polling place is exhausted. Soderbloom v. Manske, 321 N.W.2d 367 at 6 (Wis.App., 1982). It also requires the clerk to supply paper ballots if voting machines fail.

When the polling place uses voting machines, provisional votes will be cast on a paper absentee ballot form, which will then be inserted into an envelope. W.S.A. 6.97. Wisconsin law does not specifically address the question of how many of these should be provided.

Wisconsin law does generally provide that municipal clerks should determine the number of electors in the municipality and order “sufficient” ballots printed to accommodate voting. W.S.A. 5.66.

The Election Day Manual issued by the State Board of Elections instructs officials to check before the opening of polls to ensure sufficient provisional ballot materials have been supplied (see page 6).

26. (D) What additional procedures, if any, are in place to avoid long lines at polling places?

Wisconsin law includes many rules to speed voting along and deal with equipment failures.

Under W.S.A. 6.80 the election inspectors at their discretion may limit the amount of time an elector is given to vote to a minimum of one minute. If there are long lines, the time for voting may not exceed five minutes.

Wisconsin law also allows for three consecutive hours off of work on Election Day for the purpose of voting. W.S.A. 6.76. This may allow voters who experience long lines a greater chance to cast their ballots.

Under W.S.A. 6.78 any elector waiting in line at the time the polls close will be allowed to cast a vote. The polls close at 8 p.m. W.S.A. 6.78.

If voting machines are not working, the municipal clerk should provide paper ballots, allowing voting to go forward without the machines. W.S.A. 7.15.

If trained officials do not appear at the polls, an untrained worker may fill in for him on a one-time basis. W.S.A. 7.315. Municipalities also may appoint a “greeter” inspector who may fill in for other inspectors if they have to leave. W.S.A. 7.30.

26. (E) What contingency plans are in place if poll workers are unable to get voting machines to work according to their instructions? If poll workers do not report for duty on Election Day?

See (D), above.

27. What rules are in place to ensure that disabled voters are able to cast a ballot at their polling places on Election Day?

Wisconsin law prescribes procedures for assisting disabled voters and facilitating their access to polls and machines. The State Board of Elections’ digest of these procedures appears here.

Assistance for disabled voters

Wisconsin prescribes special procedures for voters who need assistance in presenting proper identification and obtaining and marking a ballot. W.S.A. 6.82. By statute, any individual may provide the elector with the necessary assistance as long as that person is not the elector’s employer or representative of a labor organization to which the elector belongs. The inspectors in charge of the registration lists shall write the “assistor’s” name next to the voter’s on the poll list and on the back of the paper ballot, if any. W.S.A. 6.82.

Paper ballots for voters who cannot use machines

Voters who cannot due to disability use a voting machine are entitled to cast a paper ballot. W.S.A. 5.40; 6.82.

Accessibility

Each polling place shall be accessible to all individuals with disabilities, and the voting system used shall allow those individuals to vote as independently and with the same degree of privacy as other voters. W.S.A. 5.25. If a particular polling place is inaccessible to a particular voter, officials may assign that voter to a different polling place. Any individual intending to vote at a polling place may notify the municipal clerk and request a special accommodation. W.S.A. 5.36.

The State Election Board invites disabled voters to evaluate different polling locations for accessibility using this form.

28. In the event that problems arise on Election Day, who determines whether to keep polls open later than originally planned and what rules, if any, guide this determination?

No information could be found regarding this topic.

29. (A) What rules if any does the state have to require election officials to notify voters of their correct polling places?

Officials must publish a notice in the medium of their choice informing voters of a method to determine their polling places — there is no requirement of publishing the polling places themselves. It is unclear whether any remedies are available for failure to give such notice.

The day before each election, officials will publish a “type D” notice that informs voters how to determine their correct polling places. W.S.A. 10.01. The method of publication will be determined by officials. Elsewhere in the code officials are instructed to publish this notice on the Monday before the election. W.S.A. 10.06. The cities of Madison and Milwaukee have provided online search tools to determine the correct polling place.

29. (B) What remedies exist, if any, in the event that officials fail to comply with such rules?

Any elector who shows up at the wrong polling place is to be given directions to the proper polling place under W.S.A. 6.55. Widespread failure of notice might give rise to an election contest lawsuit (see questions 43-47). Beyond that, it is unclear whether any remedies exist.

There are no known cases considering flawed notice of voters’ polling places, although there are cases considering flawed notice of the occurrence of elections in general. The Wisconsin Supreme Court has stated that a flawed notice of election will not invalidate an election where “the will of the electors has been in fact ascertained….” In State ex rel. Oaks v. Brown, 249 N.W. 50, 53 (1933). More recently, the Seventh Circuit went even further by suggesting that election notice requirement might be “directory” (i.e., non-essential) rather than mandatory under Wisconsin law, at least where the failure of notice did not amount to “willful conduct which undermines the organic processes by which candidates are elected.” Dieckhoff v. Severson, 915 F.2d 1145, 1149 (C.A. 7th, 1990). The distinction between mandatory and directory provisions was explained by the Wisconsin Supreme Court in another case in the following way:

“Statutes giving directions as to the mode and manner of conducting elections will be construed by the courts as directory, unless a noncompliance with their terms is expressly declared to be fatal, or will change or render doubtful the result, as where the statute merely provides that certain things shall be done in a given manner and time without declaring that conformity to such provisions is essential to the validity of the election.”

In re Chairman in Town of Worcester, 239 N.W.2d 557, 561 (Wisconsin Supreme Court, 1966).

While no court has specifically considered whether provision of the above-described notices is directory or mandatory, the statues prescribing them do not expressly declare noncompliance to be fatal and, where noncompliance does not call the result of an election into doubt, they are probably directory. In that case, there would be no meaningful remedy.

However, the Supreme Court of Wisconsin has invalidated an election in which other types of W.S.A. 10.01 notices were defective. McNally v. Tollander, 302 N.W.2d 440 (Wis., 1981). Still, because that case was filled with other procedural irregularities, it is not clear that the defective notices alone would have been enough to justify this result.

Provisional Voting

30. Who cannot cast a regular ballot at the polls, but may cast a provisional ballot?

Wisconsin voters may cast a provisional ballot in three situations: When first-time mail-in registrants fail to present ID at the polls; when Election Day Registrants fail to provide their driver’s license numbers at the polls; when first-time mail-in registrants fail to present ID together with the submission of their absentee ballots.

Unlike many other states, Wisconsin’s provisional voting system does not allow provisional voting by voters who fail to register or who appear to have failed to register prior to the election. Instead, Wisconsin’s Election Day Registration procedure simply allows those voters to register or re-register on Election Day at the polls. They may then cast regular ballots (see question 2).

Provisional voting situation #1: First-time mail-in voter fails to present proper proof of residency at the polls

Voters who register by mail and who have never before voted in Wisconsin in a federal election must present proof of residency in order to vote; the poll lists will be marked accordingly. W.S.A. 6.36(2)(c)(2). If these voters appear at the polls without proof of residency, they will not be allowed to cast a regular ballot. However, they will be allowed to cast a provisional ballot under W.S.A. 6.97 and will be informed that they must provide proof of residence to the municipal clerk or executive director of the municipal board of election commissioners.

W.S.A. 7.08 orders the Board of Elections to prescribe a notice to be distributed to voters who cast a ballot under this section. The notice informs voters that “[y]our provisional ballot will not count unless you provide the poll workers with the required information before the polling place closes at 8:00 pm tonight, or you provide the required information to the municipal clerk by 4:00 pm tomorrow.” The ballots of voters who do not comply will not be counted.

State training materials indicate that voters who are at the wrong polling place will not be allowed to cast a provisional ballot at all (see page 38).

Provisional voting situation #2: EDR voters fail to provide their driver’s license numbers at the polls

The Wisconsin Board of Elections’ latest statement indicates the Board has interpreted this scheme to require the casting of provisional rather than regular ballots for those who have valid driver’s licenses but cannot or will not state the driver’s license numbers on their Election Day Registration applications (this is regardless of whether the voter presents appropriate proof of residence). This is contrary to the procedure used in the April 4, 2006, election, where officials allowed voters who owned driver’s licenses but could not recite the driver’s license numbers for completion of the registration form to merely give their social security information (see here).

The provisional ballot will be cast under W.S.A. 6.97. The voter will receive after voting the same notice described above in situation #1. The Board’s statement says that the voter must provide his or her driver’s license number to the municipal clerk by 4:00 pm the day following the election, or the provisional ballot will not be counted. State training materials indicate that voters who are at the wrong polling place will not be allowed to cast a provisional ballot (see page 38).

Provisional voting situation #3: Absentee ballots counted as provisional ballots

The procedures are similar to those used for processing provisional ballots. The election inspectors shall inform the clerk of the ballot, who will determine whether the voter was eligible to cast a ballot. W.S.A. 6.97(2)-(3). If the clerk determines that the voter was qualified to vote where the ballot was cast, the clerk shall inform the local Board of Canvassers. The Board will then count the ballot if it is otherwise valid. The statute does not specify exactly what the clerk must do to determine whether the voter was properly qualified.

31. When will a provisional ballot be counted?

The test for whether a provisional ballot will be counted is very simple: If the voter presents the proper information before 4:00 p.m. the day after the election and the ballot is “otherwise valid,” the ballot will be counted. If the voter does not present the proper information by this time, the ballot will not be counted. What information needs to be presented depends on the situation, as outlined below.

Each municipal clerk shall maintain a “free access information” system to allow provisional voters to determine whether their ballots counted and why. W.S.A. 7.15. The State Board of Elections shall prescribe a written notice to be sent to provisional voters to inform them of this information. W.S.A. 7.08. In addition, the State Board of Elections may maintain other notification systems. W.S.A. 5.05. The notice given to provisional voters at the polls indicates that they may contact the municipal clerk to determine what happened to their ballots.

Provisional voting situation #1: First-time mail-in voter fails to present proper proof of residency at the polls

Where the voter was required to cast a provisional ballot for failure to present proper proof of residence at the polls, the voter must present such proof before the deadline. W.S.A. 6.97; 7.08; 2006 Provisional Voting Information issued by State Board of Elections. Upon presentation of such proof, the ballot will be counted if it is “otherwise valid.” W.S.A. 6.97.

Provisional voting situation #2: EDR voters fail to provide their driver’s license numbers at the polls

Where the voter was required to cast a provisional ballot for failure to provide his or her driver’s license number on the Election Day Registration form, the clerk must determine whether the voter presented that number before deadline. W.S.A. 6.97; 7.08; 2006 Provisional Voting Information issued by State Board of Elections. There is no requirement that officials communicate with another office or make any effort whatsoever to determine whether a claimed previous registration effort was properly made. If the voter provides the number before the deadline, his or her ballot will be counted provided it is “otherwise valid.” W.S.A. 6.97.

State training materials indicate that voters who are at the wrong polling place will not be allowed to cast provisional ballots (see page 38).

Provisional voting situation #3: Absentee ballots counted as provisional ballots

In this situation, the ballot will be counted only if the municipal clerk determines that the voter was eligible to cast a ballot and the ballot is otherwise valid. W.S.A. 6.88(3)(a); 6.97(2)-(3). The law does not state what the clerk must do to make this determination. It is not clear that the voter has an opportunity in this situation to ensure that his or her vote is counted by providing supplementary information, as in the first two provisional ballot situations. Indeed, Wisconsin law and administrative procedures do not contain any indicating that such a voter will be notified of the problem with his or her absentee ballot at all.

32. If a new voter registration card is rejected because of incomplete information (signature missing, for example), and a provisional ballot is cast by that voter, in what circumstances (if any) will the state count that provisional ballot as a valid vote?

Wisconsin will not allow a voter to cast a provisional ballot when his pre-Election Day registration attempt fails. Instead, officials will require the voter to complete Election Day Registration (see question 2).

33. (A) Who are the state officials that determine whether provisional ballots will count as valid votes? Are these officials elected, appointed, partisan, or non-partisan?

Counting provisional ballots is a two-step process. First, either the municipal clerk or the executive director of the municipal Board of Election Commissioners determines whether the provisional voter is qualified to vote in the jurisdiction (this includes a check of whether the voter is properly registered). W.S.A. 6.97. Second, the local Board of Canvassers receives notification of the identities of all qualified provisional voters, and the Board counts their ballots if they are “otherwise valid.” Id. The relevant officials are either elected or appointed, as set forth below.

Municipal Board of Election Commissioners

Municipal Boards of Election Commissioners must exist in every city and county exceeding 500,000 in population. W.S.A. 7.20. The statute does not say whether they may exist in other jurisdictions. The two political parties whose candidates received the most votes in the jurisdiction for the preceding gubernatorial election shall each nominate three candidates to serve on the Board. The mayor shall then select three from among these—two from the majority party, and one from the minority.

Municipal Clerks

“Municipal clerk” means any “city clerk, town clerk, village clerk and the executive director of the city election commission and their authorized representatives.” W.S.A. 5.02. It also includes the clerk of the local school district. Municipal clerks may be elected or appointed, depending on local law. W.S.A. 60.30; 61.19; 62.09.

Boards of Canvassers

Boards of Canvassers are simply the election inspectors who work at each Wisconsin polling place. W.S.A. 7.51. Election inspectors are partisan appointees and are affiliated with the two dominant political parties in the jurisdiction. W.S.A. 7.30. The party that received the most number of votes in the jurisdiction in the previous election is entitled to have one more election inspector than the other party at each polling place.

Officials at central counting locations

If the jurisdiction uses electronic voting machines it may choose to count ballots at central counting locations rather than at the polls. W.S.A. 7.51. In this case, the local clerk appoints an equal number of counting officials from each political party (except where the clerk chooses to use non-partisan appointees). W.S.A. 5.86.

33. (B) Is this review of provisional ballots conducted in public or behind closed doors?

The review is conducted in public.

Election inspectors generally count the provisional ballots at the polling place, where any person may observe. W.S.A. 6.97; 7.41. The only exception to this is when the jurisdiction has chosen to count ballots at a central counting location. W.S.A. 7.51. However, proceedings at central ballot-counting locations are public as well. W.S.A. 5.87.

33. (C) How soon after Election Day must this review of provisional ballots be complete?

The law does not provide a deadline, but does provide that counting shall continue without adjournment until it is completed. W.S.A. 7.51.

33. (D) Is it subject to any form of administrative review or appeal?

There is no known form of administrative review or appeal that is specific to provisional ballots. However, in general anybody can attempt to trigger an administrative investigation of election procedures by filing a complaint with the State Board of Elections (see question 21). W.S.A. 5.05(3).

34. If a voter is required to cast a provisional ballot because the voter lacks required ID when going to the polls, how much time (if any) is the voter permitted to provide the necessary ID in order for the provisional ballot to count?

The voter must present the required information by 4 p.m. the day after the election. W.S.A. 6.97; 7.08; 2006 Provisional Voting Information issued by State Board of Elections.

35. If a previously registered voter has moved within the same state, but has not updated the voter’s registration, and if the voter casts a provisional ballot at the correct precinct for the voter’s new address, will the provisional ballot count?

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 (see question 2).

36.If a voter casts a provisional ballot at a precinct that is not the correct one for the voter’s current address, will the provisional ballot count?

Those who appear at the wrong polling place will not be allowed to cast provisional ballots (see training materials at 38). The legal basis for this rule is unknown.

Recounts/Contests

37. What rules does the state have for protecting the chain of custody of ballots and voting counting equipment, and what remedies exist – including the possibility of ordering a new election – if those chain of custody rules are violated?

Wisconsin law includes literally dozens of chain of custody rules, some of which are summarized below. Violation of most of these custody rules carries no remedy. However, a remedy may be achieved where the rule broken is deemed “mandatory,” where the violation of the rules was egregious, or where the rule is currently in the process of being broken or is about to be broken.

Before counting

Chain of custody rules that apply before ballot counting will be provided at a later time.

After counting is complete

Ballot security. After counting, all paper ballots are “secured” (i.e., tied or otherwise fastened) together. W.S.A. 7.51(3). The method for securing them must make it impossible to tamper with the ballots without breaking a seal. After the ballots are secured, the bundle is placed into a ballot container that is secured in a similar manner. Provisional ballots are not placed into the ballot container but are placed into a carrier envelope that is secured as well. Election officials sign the carrier envelope and deliver all the materials to the municipal clerk. W.S.A. 7.51(3)(b) provides slightly different rules for elections that are exclusively local.

Elections inspectors at the precincts return any absentee ballots in a secured carrier envelope. W.S.A. 7.51.

The inspectors shall keep a certified record of all defective ballots, challenged ballots, or ballots that are set aside. Id. The record will include an explanation of why each ballot was handled the way it was. This document is secured in a sealed carrier envelope and delivered to the municipal clerk. When the municipal clerk receives it, the clerk makes sufficient copies and forwards secured copies to the county clerk, school district clerk, or other official. The municipal clerk keeps the original copy.

Tally sheet and polls list security. The inspectors (at least one from each political party) shall complete and certify a tally sheet reflecting all votes cast. W.S.A. 7.51. The tally sheet shall state the identification number of the last ballot cast. If the number of ballots cast exceeds the number of voters who signed the poll list, the tally sheet shall state the number of excess ballots. When this is complete, the inspectors shall seal the tally sheet in a carrier envelope that is attached to the ballot container. The poll list is also sealed and delivered to the municipal clerk with the ballot container.

Municipal clerk forwards materials. The municipal clerk forwards all the above materials to the county clerk or other appropriate clerk by 4 p.m. the day following the election. W.S.A. 7.51. Slightly different rules apply where absentee ballot counting centers are established or where returns are corrected.

Maintenance and destruction of election materials. The clerk to whom these materials are forwarded shall maintain them until they may be destroyed without violating rules outlined by W.S.A. 7.23. In the meantime, they must be stored in a space where only the clerk and persons known to the clerk have access. WI ADC s ElBd 5.01. Ballots may be destroyed thirty days after an election, except that in federal elections they must be preserved for twenty-two months. W.S.A. 7.23. Memory cartridges containing votes may be erased fourteen days after a primary and twenty-one days after a general election, but only after the data has been transferred to another medium. The transferred data may be erased twenty-two months after the election. However, these electronic materials may be erased at an earlier time with the governor’s permission, unless a court orders otherwise or there is a recount or election contest pending.

Where a recount or election contest is filed, election materials may be destroyed or erased only by order of the presiding judge. Id. If there is no presiding judge (as in a recount), the materials may be disposed of by order of the local circuit judge.

In event of a recount. In the event of a recount, election contest, or public records request requiring the clerk to open the ballot containers, the clerk shall make a record. WI ADC s ElBd 5.01. When there is no more need for the ballots to be in the open they must be returned and stored as they were before.

Special rules where voting machines are used

The State Board of Elections has adopted “Security Recommendations for Electronic Voting Systems,” which would apply to both DRE machines and optical scan machines. Although titled “recommendations,” municipalities must obtain prior approval from the Board before using alternative procedures. The “recommendations” include, but are not limited to:

Any voting machine vendor or technical service company helping to supply and service the machines must certify that it provided written security procedures to the State Elections Board and that it complied with those procedures when it handled the machines. Failure to comply with these rules may lead to disapproval of the machines in future elections, refund of all monies paid to the company for voting systems and services, and other civil and criminal penalties.
The municipal clerk shall keep memory cards secure and keep a written chain-of-custody record for each card.
There shall be an additional written log of each individual who “accesses” the voting system.
Each memory card shall have a unique identification number.
Voting machines and memory cards shall be secured by tamper-resistant, serialized seals that break when opened.
The clerk shall keep a written chain-of-custody record for any keys used to open voting machines.
On Election Day, the chief election inspector will record whether the proper seals are in place.
On Election Day, ballots cannot be removed from optical scan machines until the results are first printed from the machine. Even then, ballots cannot be removed unless at least two inspectors are present. The names of the inspectors and time of removal must be recorded. The results report and the memory card are placed in a sealed container and forwarded to the municipal clerk.
After the election, the clerk will inspect the machines to ensure they’re locked and the seals have been placed upon them.

Remedies where chain of custody rules are violated

Generally there will be no remedy. This is because Wisconsin courts have treated most chain of custody rules as “directory” rather than mandatory. The distinction between directory and mandatory provisions was explained by the Wisconsin Supreme Court in the following way:

In re Chairman in Town of Worcester, 239 N.W.2d 557, 561 (Wisconsin Supreme Court, 1966). Failure to follow directory procedures will not invalidate a ballot or election where there has been “substantial compliance” with the procedures. Roth v. La Farge School Dist. Bd. of Canvassers, 634 N.W.2d 882, 889 (Wis.App., 2001). Here are some examples of chain of custody rules that courts have either held to be directory or at least suggested might be directory:

A rule that two elections inspectors sign the back of each distributed ballot. Roth v. La Farge School Dist. Bd. of Canvassers, 634 N.W.2d 882, 889 (Wis.App., 2001).
A rule requiring that election inspectors to sign oaths before serving. Clapp v. Joint School Dist. No. 1 of Villages of Hammond and Roberts, 124 N.W.2d 678, 479 (Wis., 1963).
A rule requiring that ballot boxes be locked during voting. Id.
A rule requiring that, after voting, ballot boxes should be opened and canvassed by the election inspectors of the precinct where voting occurred. Id.
A rule requiring that tally sheets be signed by the election clerks. Id.
A rule requiring that ballot boxes after canvassing be locked, sealed and returned to the clerk for safekeeping. Id.

In McNally v. Tollander, the Wisconsin Supreme Court ordered a new election where numerous procedural irregularities occurred, some of them related to chain of custody. Id., 302 N.W.2d 440 (Wis., 1981). However, the court explicitly found it unnecessary to reach the question of whether the violated rules were directory or mandatory because substantial compliance was not achieved. Id. at 499.

Even where substantial compliance with directory rules has not been achieved, the plaintiff in an election contest lawsuit might not be able to prevail unless he or she can show the irregularities probably changed the outcome of the election (see Question 43).

Where violation of chain of custody rules is not yet complete. Where officials are currently in the process of violating chain of custody rules, any person might succeed in interrupting the violation by reporting it to the state Elections Board under W.S.A. 5.05(3). The Board may investigate, schedule a hearing, and issue an order requiring officials to conform their conduct to the law. W.S.A. 5.06. In cases of emergency, the Board may schedule the hearing with less than ten days notice, and may also issue what amounts to a temporary restraining order before the hearing can be conducted. ElBd 10.06; 10.09. If the official does not cooperate with the Board’s order, the Board may “restrain” the official. W.S.A. 5.06. The court’s decision may be appealed to the local circuit court within thirty days, but that will not stay the Board’s order unless the circuit court specifies this.

For further procedural details of the above process, see ElBd 10.01-10.10.

Voters who observe improprieties may also file petitions with the local Board of Commissioners or District Attorney requesting a civil action be brought to obtain an injunction. W.S.A. 11.60(5).

38. Are losing candidates and their supporters permitted to contest the results of an election on the ground that ineligible ballots were included in certified total, even if it is unknown for which candidate those ineligible ballots were cast?

Yes. The exclusive remedy in this case would be to file a recount petition (unless the contestee obtained office by unlawful usurpation, in which case an action in quo warranto might be available). W.S.A. 9.01; State ex. Rel. Shroble v. Prusener, 517 N.W.2d 169, 172 (Wis., 1994). To state a claim, a recount petition must only state that “the petitioner is informed and believes” that specific errors occurred in specific jurisdictions. W.S.A. 9.01. The plain language of the statute does not require that a petitioner be able to identify at the time of filing the recount petition exactly what votes were cast illegally. In fact, the statute does not even require the petitioner to allege that the illegal votes changed the result of the election. In Logerquist v. Board of Canvassers for Town of Nasewaupee, 442 N.W.2d 551, the court held that, in the context of a recount action, a petitioner may maintain a post-election challenge of voters’ eligibility despite “the numerous problems involved with post-election challenges… [flowing from the fact that] the contents of the challenged ballot cannot be satisfactorily determined.” Id. at 554 (Wis.App., 1989).

Nevertheless, after the initial pleading stage, a court will generally dismiss a recount action if the petitioner fails to “show the probability of an altered outcome.” Soderbloom v. Manske, 321 N.W.2d 367 (Table) at 4 (Wis.App., 1982); see also Lanser v. Koconis, 214 N.W.2d 425, 431 (Wis., 1974). Still, the Wisconsin Supreme Court has expressed a willingness to overturn the result of an election even in the absence of any evidence of an altered result “where a candidate would stand to benefit from his own wrongdoing or where fraud was involved.” McNally v. Tollander, 302 N.W.2d 440, 447-448, (Wis., 1981). Furthermore, the Supreme Court has held that where “deprivations of the right to vote are so significant in number or so egregious in character as to seriously undermine the appearance of fairness,… an election must be set aside, even where the outcome of the election might not be changed.” McNally v. Tollander, 302 N.W.2d 440, 447-448, (Wis., 1981). However, because that holding resulted from a truly unusual election in which 40% of the electorate was disenfranchised, it may not apply to less egregious cases.

While the Wisconsin constitution generally protects voting secrecy, it expressly states that it does not protect the secrecy of individuals who cast ballots illegally. See Article III, s 3 of the Wisconsin Constitution; Carlson v. Oconto County Bd. Of Canvassers, 623 N.W.2d 195, 199 (Wis.App., 2000). Subject to the right against self-incrimination, those individuals may be compelled to testify about the content of their ballots.

39. How close must the result of a statewide election be in order for an automatic recount to occur?

Wisconsin does not have automatic recounts.

40. (A) In what circumstances are losing candidates or their supporters entitled to request a (non-automatic) recount?

A candidate (but not the supporter of a candidate) may request a recount if that candidate “believes that a mistake or fraud has been committed in a specified ward or municipality in the counting and return of the votes cast for the office… or that another specified defect, irregularity, or illegality occurred in the conduct of the election.” W.S.A. 9.01.

40. (B) How is that done? What is the deadline for doing so?

Candidates may obtain a recount by filing a verified recount petition, generally at a time falling in between the completion of the canvass and not later than 5 p.m. on the 3rd business day following the last meeting day of the Board of Canvassers that completed the canvass. W.S.A. 9.01. The petition must specify that the petitioner is a candidate for the disputed office, that specific irregularities occurred in specific jurisdictions, and must specify the jurisdictions where a recount is desired.

The petition must be filed with “the clerk of the body with whom nomination papers are filed for that office.” Id. To be valid, it must be accompanied by payment of a recount fee that is adjusted up or down based on the closeness of the original vote count. In the case of very close counts, there is no fee.

A candidate or issue supporter affected by the recount may expand the number of jurisdictions that will be recounted by filing a recount petition by 5 p.m. two days after the Board of Canvassers completes the first recount. W.S.A. 9.01.

After the recount is completed, the results may be appealed to the Wisconsin circuit court within five business days. W.S.A. § 9.01(6)(a) (2004).

40. (C) When should the recount be completed?

The recount should be completed no later than thirteen days from the date the local Board of Canvassers orders a recount to occur. W.S.A. 9.01. The Board must order the recount to occur “promptly” after receiving a valid recount petition from the local clerk, including any payment due. Id.

40. (D) Who pays for the recount?

The petitioner pays for the recount, unless there is no fee. W.S.A. 9.01. When 1,000 or fewer total votes are cast for an office and the margin of victory is nine or fewer votes, there is no fee. In elections where more than 1,000 total votes are cast, there is no fee if the margin of victory is one half of one percent or less.

41. In the event of a recount of votes cast on a DRE machine, is the record to be recounted electronic or paper?

Paper. W.S.A. 5.90. There are only two exceptions. First, when “an error in the [paper] record is clearly apparent.” W.S.A. 7.51. Second, when a candidate or ballot issue supporter requests that the electronic record be viewed. In all other cases, the paper record is presumed correct.

42. Who are the state officials who conduct recounts?

County and municipal Boards of Canvassers conduct recounts. W.S.A. 9.01.

In municipalities with only one polling place, the municipal Board of Canvassers is simply made of the election inspectors appointed to that polling place (except for the “greeter” inspector, who is excluded). W.S.A. 7.53. An odd number of election inspectors are appointed by the municipal clerk from lists submitted by the two major political parties. W.S.A. 7.30. The party that obtained the most votes in the preceding gubernatorial or presidential election receives one more inspector than the other.

In municipalities with more than one polling place but less than 500,000 residents, the municipal Board of Canvassers consists of the municipal clerk and “two other qualified electors of the municipality appointed by the clerk.” Id. Municipal clerks are elected or appointed in accordance with local law. W.S.A. 60.30; 61.197; 62.09.

In municipalities with more than 500,000 residents, the Board of Election Commissioners constitutes the municipal Board of Canvassers. W.S.A. 7.53. The Board consists of three members appointed by the mayor– two from the party that received the most votes in the preceding gubernatorial election and one from the runner-up party. W.S.A. 7.20.

In counties, the county clerk and two qualified electors appointed by the clerk constitute the county Board. W.S.A. 7.60. One member of the county Board shall be of a political party other than that of the clerk. County clerks are elected once every two years. W.S.A. 59.20.

43. In an election contest lawsuit, what is the contestant’s burden of proof?

The contestant generally must “show the probability of an altered outcome, in the absence of the challenged irregularity.” Carlson v. Oconto County Bd. Of Canvassers, 623 N.W.2d 195, 198 (Wis.App., 2000), citing McNally v. Tollander, 302 N.W.2d 440, 447 (Wis., 1981).

However, there are two exceptions. First, the Wisconsin Supreme Court has expressed a willingness to overturn the result of an election even in the absence of any evidence of an altered result “where a candidate would stand to benefit from his own wrongdoing or where fraud was involved.” McNally v. Tollander, 302 N.W.2d 440, 447-448, (Wis., 1981). Second, the Supreme Court has held that where “deprivations of the right to vote are so significant in number or so egregious in character as to seriously undermine the appearance of fairness,… an election must be set aside, even where the outcome of the election might not be changed.” McNally v. Tollander, 302 N.W.2d 440, 447-448, (Wis., 1981). However, because that holding resulted from a truly unusual election in which 40% of the electorate was disenfranchised, it may not apply to less egregious cases.

Another issue is that the “probability of an altered outcome” standard becomes more complicated due to the following wrinkle: In Wisconsin, courts will allow an election contest lawsuit only as an appeal from a recount. W.S.A. 9.01. This makes the burden of proof more difficult because the court handling the appeal will give some deference to the fact findings made by the recount officials. In attempting to overturn the result of the recount, the contestant must show that the Board of Canvassers in conducting the recount either “erroneously interpreted a provision of law” or made a “finding of fact that is not supported by substantial evidence.” Id. Except where the Board’s findings of fact were not supported by such evidence, “the court may not substitute its judgment for that of the board of canvassers… as to the weight of the evidence on any disputed finding of fact.” Id.

Finally, there are two situations where the burden of proof is raised even higher. The first situation is where a contestant attempts to change the result of an election by disqualifying the votes of certain voters. In Logerquist v. Board of Canvassers for Town of Nasewaupee, 442 N.W.2d 551, the court applied a “beyond a reasonable doubt” standard to this type of contest because that is the standard that applies to voter registration challenges generally. W.S.A. 6.325. Second, a contestant who seeks to overturn the vote count recorded by a “voting machine or electronic voting system” must go beyond the traditional preponderance standard to demonstrate by clear and convincing evidence that the original total was incorrect. W.S.A. 9.01.

44. In an election contest lawsuit, will the court permit discovery, including depositions?

Generally no. Wisconsin law will allow an election contest lawsuit only as an appeal from a recount. W.S.A. 9.01. The court may not receive evidence that was not presented to the Board of Canvassers in performing the original recount. The only two exceptions to this are (a) when the evidence was unknown or unavailable during the recount despite the exercise of due diligence and (b) when the party seeking to present the new evidence was not represented by counsel in the original recount proceeding. Id.

The relevant statute does not fully explain how a contestant can present evidence to the Board of Canvassers, although it does state that contestants may view the recounting of ballots and object to the counting of any ballot. W.S.A. 9.01. It also states that the recount petition may be amended to reflect any new information that was not reasonably available at the time of the filing of the petition. Together, these two provisions may be the only methods by which candidates may “present” evidence to the Board. However, the Board performs its own examination of the ballots and voting equipment and this may suffice to uncover most irregularities.

45. In an election contest lawsuit, how much evidence of wrongdoing must a contestant have to survive a motion to dismiss?

None. Upon a motion to dismiss an election contest, the court will assume facts contained in the non-moving party’s pleadings are true. State ex rel. Shroble v. Prusener, 517 N.W.2d 169, 171 (Wis., 1994). For that reason, no evidence is necessary, only allegations. According to the statute, the petitioner must only allege that “the petitioner is informed and believes” that specific errors occurred in specific jurisdictions. W.S.A. 9.01. The statute does not explicitly require the petitioner to allege that the illegal votes changed the result of the election. However, a wise petitioner would make that allegation because ultimately it is necessary to show a changed result to achieve success. Soderbloom v. Manske, 321 N.W.2d 367 (Table) at 4 (Wis.App., 1982); see also Lanser v. Koconis, 214 N.W.2d 425, 431 (Wis., 1974).

46. In an election contest lawsuit, what specific deadlines and timetable does state law provide for a trial?

Generally, an election contest lawsuit cannot be filed until after a recount has been requested and completed. W.S.A. 9.01. The lawsuit must be filed in the form of an appeal of the recount, which is filed with the local trial court. The notice of appeal must be filed within five business days of completion of the recount. Furthermore, the contestant must serve notices on the relevant Boards of Canvassers and political opponents; one court has interpreted W.S.A. 9.01 to deprive the courts of jurisdiction when the contestant fails to do so. Logic v. City of South Milwaukee Bd. Of Canvassers, 689 N.W.2d 692, 694 (Wis. App., 2004). The court in which the appeal is filed shall “immediately” order that all election materials be secured and/or delivered to the court. The court will then hold a scheduling conference and set deadlines for the filing of the complaint, answer, and other documents. The court will determine the matter as expeditiously as possible and it will be “summarily heard.” Id. Appeals of the trial court’s decision must be filed within thirty days. Id.

However, there is one potential exception to the rule that says election contests cannot be filed prior to a recount: Quo warranto. W.S.A. 9.01 states that the recount/election contest procedure it outlines is the exclusive remedy for “testing the right to hold an elective office as the result of any alleged irregularity, defect, or mistake committed during the voting or canvassing process.” Accordingly, the Wisconsin Supreme Court has held that W.S.A. 9.01 is the exclusive remedy “in cases involving mistakes in the canvassing process,” precluding quo warranto in such cases. State ex rel. Shroble v. Prusener, 517 N.W.2d 169, 174 (Wis., 1994). However, in the previous sentence, the court was careful to state that “[o]ur decision in this case does not affect the availability of quo warranto to remedy a usurpation of office.” Id. While the court did not explicitly define what it meant by the word “usurpation,” it did make it clear that usurpation involved something not only incorrect, but unlawful, and something more than a mere technical mistake in following the proper election procedures. For these reasons, quo warranto may still be available in usurpation cases. But see Carlson, supra, at 197, interpreting Prusener to say that the recount procedure is the exclusive remedy for not only cases involving mistakes in canvassing, but also for cases involving “any claimed election fraud or irregularity.”

The quo warranto statute states that the remedy is available when “any person shall usurp, intrude into or unlawfully hold or exercise any public office….” W.S.A. 784.04. Unlike W.S.A. 9.01, the statute does not prescribe a rigid timetable for completion of the action.

47. Are the judges in the state themselves elected or appointed?

Supreme Court justices are elected to ten-year terms. W.S.A. Const. Art. 7, s 4. Trial and appellate judges are elected to six-year terms. W.S.A. Const. Art. 7, ss 5, 7.

It is also important to mention the role of local Boards of Canvassers. Unlike most states, Wisconsin does not allow contestants to bring election contest lawsuits without first requesting and completing a recount. Furthermore, Wisconsin election contests are essentially appeals of recounts, rather than contests in their own right. Because Boards of Canvassers conduct recounts, in election contests they function in some of the same ways that trial court judges function in other states. Specifically, Boards of Canvassers make findings of fact that cannot be disturbed by a judge on appeal unless the judge finds they were “not supported by substantial evidence.” W.S.A. 9.01. Furthermore, to preserve evidence for a later election contest, candidates in a recount must present that evidence to the Board of Canvassers during the recount. Id. Evidence not presented at the recount level generally cannot be presented when the case goes to court.

Other

48. What specific problems arose in connection with the voting process in this state during 2004? What remedies, if any, did the state adopt in response to those problems?

The major problems with the 2004 elections in Wisconsin, and the problems that have received the most media attention, were problems with actual and possible voter fraud. A New Push to Repair Elections, Milwaukee Journal Sentinel, May 15, 2005. John Kerry won the presidential election in the state by approximately 11,000 votes—an extremely small margin. Thus, even a relatively small number of fraudulent votes could have had a major impact on the outcome.

Investigators found a handful of individuals had submitted fraudulent voter registrations. A New Push to Repair Elections, Milwaukee Journal Sentinel, May 15, 2005. Some of those individuals were later prosecuted and convicted of elections fraud. Parties spar over city voter lists, Milwaukee Journal Sentinel, October 27, 2006.

In addition, shortly before the election, the Republican Party made a last-minute challenge to the registrations of approximately 5,500 Milwaukee voters as invalid because their addresses on file did not exist or were not residences. GOP Fails to Get 5,619 Names Removed from Voting Lists, Milwaukee Journal Sentinel, Oct. 29, 2004. The city Election Commission denied the challenge, but Republican poll watchers responded by challenging voter registrations at the polls in a way that some found intimidating. New rules sought for poll watchers, Milwaukee Journal Sentinel, November 18, 2004.

Milwaukee narrowly averted a major problem, adding approximately 15,000-20,000 voters to the rolls the night before Election Day. State Workers Helped in Race to Add Voters to City Rolls, Milwaukee Journal Sentinel, Nov. 5, 2004. Because Wisconsin allows not only same-day voter registration, but also accepts registration cards right up until voting day, the city of Milwaukee fell behind in processing the new voter registration cards flooding in at the last minute. A strong volunteer effort by state employees the night before elections avoided much confusion, and possibly worse, by adding the newly registered voters to the rolls.

A second problem with the voter rolls was that, although state law required rolls to be purged every two years of felons and those who had moved, many counties had not complied. A New Push to Repair Elections, Milwaukee Journal Sentinel, May 15, 2005. Many legitimate voters were thus registered at multiple addresses after moving, opening the door to the casting of multiple votes.

Problems at the polling places on Election Day were limited to long waits, up to four hours in some precincts. Election 2004: Big Turnout Brings Glitches But Not Feared Chaos, Milwaukee Journal Sentinel, Nov. 3, 2004. Election worker and equipment shortages, high voter turnout, and scattered reports of polling place harassment were cited as the cause of the delays.

A Milwaukee Journal Sentinel analysis indicated that over 200 felons voted illegally. Review indicates 278 Felons Cast Ballots Illegally in State, Milwaukee Journal Sentinel, April 1, 2005. Election Day registration procedures did not include any cross-check against lists of convictions that could have prevented those felons from registering and voting.

Same-day registration also resulted in over a thousand new registrants who signed up at nonexistent addresses or addresses where they probably do not live. Fraud or Bumbling, Voter Problems Still Unnerving to Public, Milwaukee Journal Sentinel, Jan. 30, 2005.

Comparisons of canvass results with the number of signatures in poll books showed that Milwaukee voting machines counted about 4,600 votes beyond the number of voters who signed in. Fraud or Bumbling, Voter Problems Still Unnerving to Public, Milwaukee Journal Sentinel, January 30, 2005. Milwaukee election officials stated that this was approximately consistent with the typical error rate during presidential elections.

Efforts to correct the problems have been spearheaded by two main groups. State Republicans have pointed to voter fraud as necessitating a photo ID requirement at the polls. Senate Approves Voter ID Measure, Milwaukee Journal Sentinel, April 14, 2005. Governor Jim Doyle has vetoed such measures in the past and says they create a hardship on voters who do not have driver licenses. He and other Democratic leaders also state that a photo ID requirement would have stopped neither felons from voting, nor the danger of double-voting created by failure to purge the voter rolls of those who have changed addresses. Doyle Offers Election Reforms, Milwaukee Journal Sentinel, April 1, 2005; Inquiry Finds Evidence of Fraud in Election, Milwaukee Journal Sentinel, May 11, 2005.

Gov. Doyle devised a reform package after the 2004 elections. Doyle Offers Election Reforms, Milwaukee Journal Sentinel, April 1, 2005; Inquiry Finds Evidence of Fraud in Election, Milwaukee Journal Sentinel, May 11, 2005. To this point, however, none of these measures have been adopted. Election Fraud Plan to Miss Fall Vote, Milwaukee Journal Sentinel, August 4, 2006. Key provisions include a deadline for pre-election registration of two weeks before Election Day (to avoid the fiasco that necessitated the all-night voter roll update in Milwaukee), stricter safeguards designed to guarantee that ineligible votes cast by felons could be taken out for an accurate recount, and the creation of an early voting period to lessen the impact of long Election-Day lines. Gov. Doyle has also stated publicly that he would support an ID requirement at the polls that did not require photo ID (such as a utility bill).

49. What pending litigation exists in the state concerning the voting process?

As of January 6, 2007, none.

50. What voting machines are used in this particular state? What security measures are in place to prevent tampering with the voting machines? Insofar as DRE machines are used, is there a requirement that they produce a voter-verifiable paper trail?

Wisconsin uses a number of different voting machines. DRE machines are in use in a small number of municipalities, but optical scan machines are much more popular. The lever system is still used in a handful of places, but hand-counted paper ballots are used by more municipalities than any other system. Punch-card systems are specifically prohibited. W.S.A. 5.91(14). For a city-by-city breakdown of voting equipment statewide, see this document made available by the state Elections Board.

DRE machines are required to produce a permanent paper record, and to present the voter with “visual or nonvisual means as appropriate” by which the voter may verify the ballot before leaving the area. W.S.A. § 5.91(18).

No voting machine may be used unless approved by the state Board of Elections. W.S.A. 5.91. Before approval, the Board of Elections must test the machines in three mock elections. WI ADC s ElBd 7.01. In addition, the Board may require the machines be used in an actual election before official approval. WI ADC ElBd 7.02. To gain approval, the machine must be “usable safely, securely, efficiently and accurately in the conduct of elections and counting of ballots.” W.S.A. 5.91. The Elections Board “shall promulgate rules to ensure the security, review and verification of software components used with each electronic voting system…” W.S.A. 5.905. As of January 6, 2007, the Board has not promulgated any such rules.

An official copy of the source code is kept in escrow that can be used to determine whether the source code in a particular machine has been corrupted. W.S.A. 5.905. The Board of Elections must allow parties to a recount to view the source code if the parties agree to keep it secret.

Municipal clerks must test voting machines within ten days of each election. W.S.A. 5.84. The tests are open to the public. Tests are also performed before each recount. W.S.A. 5.90.

Any voting machine vendor or technical service company helping to supply and service the machines must certify that it provided written security procedures to the State Elections Board and that it complied with those procedures when it handled the machines. Failure to comply with these rules may lead to disapproval of the machines in future elections, refund of all monies paid to the company for voting systems and services, and other civil and criminal penalties.
The municipal clerk shall keep memory cards secure and keep a written chain-of-custody record for each card.
There shall be an additional written log of each individual who “accesses” the voting system.
Each memory card shall have a unique identification number.
Voting machines and memory cards shall be secured by tamper-resistant, serialized seals that break when opened.
The clerk shall keep a written chain-of-custody record for any keys used to open voting machines.
On Election Day, the chief election inspector will record whether the proper seals are in place.
On Election Day, ballots cannot be removed from optical scan machines until the results are first printed from the machine. Even then, ballots cannot be removed unless at least two inspectors are present. The names of the inspectors and time of removal must be recorded. The results report and the memory card are placed in a sealed container and forwarded to the municipal clerk.
After the election, the clerk will inspect the machines to ensure they are locked and the seals have been placed upon them.