Amendment SSA1-SB685

LRBs0179/1

MPG&JK:skw

2023 - 2024 LEGISLATURE

SENATE SUBSTITUTE AMENDMENT 1, TO SENATE BILL 685

November 15, 2023 - Offered by Senator Cabral-Guevara.

SB685-SSA1,1,8 An Act to repeal 5.85 (5), 5.86 and 7.03 (1) (c); to renumber and amend 7.52 (1) (a); to amend 5.05 (12), 5.84 (1), 5.84 (2), 5.85 (1), 5.87 (1), 5.91 (17), 6.15 (4) (a), 6.15 (4) (b), 6.33 (1), 6.86 (1) (b), 6.87 (6), 6.88 (1), 6.88 (2), 7.37 (12), 7.51 (1), 7.52 (2), 7.52 (3) (a), 7.52 (4) (a), 7.52 (9), 12.60 (1) (a) and 54.25 (2) (c) 1. g.; and to create 5.057, 6.88 (4), 7.15 (16), 7.52 (1) (d) to (h), 7.52 (10) and 7.52 (11) of the statutes; relating to: canvassing absentee ballots, use of central counting locations, election night reporting, court determinations of incompetency and ineligibility to vote, and providing a penalty.

Analysis by the Legislative Reference Bureau

Early canvassing of absentee ballots

Under current law, absentee ballots may not be canvassed until election day. Current law additionally provides that any municipality may provide by ordinance that, in lieu of canvassing absentee ballots at polling places, a municipal board of absentee ballot canvassers established by the municipality is responsible for canvassing all absentee ballots received by the municipal clerk by 8 p.m. on election day. In such a municipality, the board of absentee ballot canvassers is required to convene a meeting any time after the polls open and before 10 p.m. on election day to canvass the absentee ballots cast in the municipality in the election. Among the requirements governing such a meeting, any member of the public has the same right of access to the meeting that the individual would have to observe the canvassing of absentee ballots at a polling place.

This bill does all of the following:

1. Requires the municipal board of absentee ballot canvassers in a municipality having an ordinance described above to begin canvassing absentee ballots on the day before an election. Canvassing absentee ballots on the day before the election is optional except for each spring and general election and each special election or recall election if the special or recall election is for a state or national office.

2. Provides that the board of absentee ballot canvassers must publicly convene no earlier than 7 a.m. on the day before the election to begin the canvass of absentee ballots for the municipality and recess at 8 p.m. on that day.

3. Requires that at 8 p.m. on the day before the election, and at 7 a.m., noon, and 8 p.m. on election day, the municipal clerk or his or her designee or the municipal board of election commissioners must provide to the county clerk or county board of election commissioners of the county in which the municipality is located a statement that shows the total number of absentee ballots returned to the municipality and the total number of absentee ballots the municipal board of absentee ballot canvassers has canvassed. The county clerk or county board of election commissioners must promptly post each statement on the website on which returns for the county are posted on election night. In a municipality having a municipal board of election commissioners (currently, only the city of Milwaukee), the municipal board of election commissioners must also post the statement on the website maintained by the municipal board of election commissioners. The statement may not include the names or addresses of any electors. An absentee ballot is considered canvassed for purposes of this reporting requirement only after all tasks have been completed in the canvassing process except for the tallying of votes.

4. Requires that when the meeting of the board of absentee ballot canvassers recesses on the day before the election, the board must secure the automatic tabulating equipment, and the areas where the programmed media, memory devices, and absentee ballots are housed, with tamper-evident security seals in a double-lock location such as a locked cabinet inside a locked office. Before resuming the canvassing of absentee ballots, the board must check and record the status of each tamper-evident seal and must immediately notify the Elections Commission of any evidence of tampering. If the board discovers evidence of tampering with respect to automatic tabulating equipment, the canvass may not resume until the equipment is replaced and the replacement equipment is tested. Also, if the board discovers evidence of tampering, the Elections Commission must verify the accuracy of the absentee ballot count by ordering the municipality to conduct a recount after the election and conducting an audit of the election equipment.

5. Provides that votes on absentee ballots canvassed early under the bill may not be tallied until after the polls close on election day.

6. Provides that no person may act in a manner that would give him or her the ability to know or to provide information on the tallied results from the ballots canvassed under the bill before the polls close on election day. Whoever intentionally violates that prohibition is guilty of a Class I felony, the penalty for which is a fine not to exceed $10,000 or imprisonment not to exceed three years and six months, or both.

7. Authorizes municipalities not having a board of absentee ballot canvassers to begin processing absentee ballots beginning no earlier than 7 a.m. on the day before the election subject to some of the requirements described above. In order to canvass absentee ballots early, such a municipality must provide by ordinance that absentee ballots received by the municipal clerk may be canvassed on the day before the election. Prior to enacting the ordinance, the municipal clerk must notify the Elections Commission in writing of the proposed ordinance and must consult with the Elections Commission concerning the early canvassing of absentee ballots.

Finally, under current law, criminal penalties are provided for election officials who commit certain specified kinds of election fraud. Otherwise, the willful neglect or refusal of an election official to perform a duty prescribed under the election laws is punishable by disqualification to act as an election official for five years. Under the bill, a member of the municipal board of absentee ballot canvassers or other election official who willfully neglects or refuses to perform any of the duties prescribed under the bill, and other duties prescribed under current law, with respect to the canvassing of absentee ballots by a municipal board of absentee ballot canvassers is guilty of a Class I felony.

Use of central counting locations

Under current law, votes are canvassed at the polling place after polls close on election day, except that any municipality where an electronic voting system is used may elect to adjourn the canvass to a central counting location where votes cast at multiple polling places in the municipality may all be counted after the polls close on election day. The bill eliminates the option for municipalities to use such central counting locations.

Election night reporting

Under the bill, at 10 p.m. on election night, and every hour thereafter until the canvass is complete, each municipal clerk or his or her designee must provide to the county clerk of the county in which the municipality is located a statement that shows the total number of ballots, including absentee ballots, cast at the municipality in the election, the total number of ballots, including absentee ballots, that have been canvassed, and the total number of ballots, including absentee ballots, that remain to be canvassed. The county clerk must promptly post each statement on the website on which the county clerk posts returns on election night. In a municipality having a municipal board of election commissioners (currently, only the city of Milwaukee), the municipal board of election commissioners must also post the statement on the website maintained by the municipal board of election commissioners. The statement may not include the names or addresses of any electors.

Court determinations of incompetency and ineligibility to vote

Under current law, no person who is incapable of understanding the objective of the elective process or who is under a guardianship may vote unless a court has determined that the person is competent to vote. Current law also allows any voter in a municipality to petition a circuit court to determine whether a person residing in the municipality is incapable of understanding the objective of the elective process. If the court determines that the person is incapable of such understanding, the person is not eligible to register to vote or to vote. Current law requires the clerk of the circuit court to communicate the court's determinations, in writing, to the election officials who are responsible for determining challenges to registration and voting that may be brought against the person.

This bill requires the circuit court to notify the Elections Commission, by email, of the court's determination regarding incompetency and ineligibility to register to vote or to vote. Under the bill, when the commission receives a determination of incompetency and ineligibility to register to vote or to vote, the commission must, within three business days, change the status of the voter subject to the determination to inactive on the official voter registration list, note on the list that the voter is ineligible to register to vote or to vote, and notify the voter and the voter's municipal clerk of the voter's change in status. The bill also provides that if a court reviews a determination of incompetency and ineligibility to vote and restores the voter's right to vote, upon receipt of that determination by email, the commission must, within three business days, notify the voter that the voter is eligible to vote and that the voter is required to complete a new registration to vote if the voter intends to vote. Under the bill, the clerk must examine the registration list before issuing a ballot to any voter.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB685-SSA1,1 Section 1 . 5.05 (12) of the statutes is amended to read:

SB685-SSA1,4,7 5.05 (12) Voter education. The commission may conduct or prescribe requirements for educational programs to inform electors about voting procedures, voting rights, and voting technology. The commission shall conduct an educational program for the purpose of educating electors who cast paper ballots, ballots that are counted at a central counting location, and absentee ballots of the effect of casting excess votes for a single office.

SB685-SSA1,2 Section 2 . 5.057 of the statutes is created to read:

SB685-SSA1,5,15 5.057 Determination of ineligibility to vote due to incompetency. (1) Upon receipt of a determination of ineligibility to register to vote or to vote under s. 54.25 (2) (c) 1. g., the commission shall, no later than 3 business days after receiving the determination, change the status of the elector subject to the determination to inactive on the official registration list under s. 6.36, note on the list that the elector is ineligible to register to vote or to vote in accordance with s. 6.03 (3), and notify the elector and the elector's municipal clerk of the elector's change in status. If the commission does not have a record of the elector upon receipt of a determination of ineligibility, the commission shall create a record listing the elector as ineligible to vote in accordance with s. 6.03 (3) and provide a copy of that record to the elector's municipal clerk. Upon receipt of a registration to vote, the municipal clerk shall examine the registration list to determine whether the elector is ineligible to register to vote or to vote in accordance with s. 6.03 (3) and shall notify the elector if the clerk determines that the elector is ineligible. The clerk shall examine the registration list before issuing a ballot to any elector.

SB685-SSA1,5,23 (2) If under s. 54.64 (2) (a) a court subsequently reviews a determination of ineligibility to vote under s. 54.25 (2) (c) 1. g. and restores an elector's right to vote, as provided under s. 54.64 (2) (c), upon receipt of the reviewing court's determination, the commission shall, no later than 3 business days after receiving the determination, notify the elector that the elector is eligible to vote, but that the elector is required to complete a new voter registration if the elector intends to vote. The commission shall submit with the notice a registration form for the elector to complete and return to the municipal clerk, if the elector intends to vote.

SB685-SSA1,3 Section 3 . 5.84 (1) of the statutes is amended to read:

SB685-SSA1,6,20 5.84 (1) Where any municipality employs an electronic voting system which that utilizes automatic tabulating equipment, either at the polling place or at a central counting location, the municipal clerk shall, on any day not more than 10 days prior to the election day on which the equipment is to be utilized in an election, have the equipment tested to ascertain that it will correctly count the votes cast for all offices and on all measures. Public notice of the time and place of the test shall be given by the clerk at least 48 hours prior to the test by posting notice on the municipality's website if it has one and by publication of a class 1 notice under ch. 985 in one or more newspapers published within the municipality if a newspaper is published therein, otherwise in a newspaper of general circulation therein. The test shall be open to the public. The test shall be conducted by processing a preaudited group of ballots so marked as to record a predetermined number of valid votes for each candidate and on each referendum. The test shall include for each office one or more ballots which have votes in excess of the number allowed by law and, for a partisan primary election, one or more ballots which have votes cast for candidates of more than one recognized political party, in order to test the ability of the automatic tabulating equipment to reject such votes. If any error is detected, the municipal clerk shall ascertain the cause and correct the error. The clerk shall make an errorless count before the automatic tabulating equipment is approved by the clerk for use in the election.

SB685-SSA1,4 Section 4 . 5.84 (2) of the statutes is amended to read:

SB685-SSA1,7,3 5.84 (2) Before beginning the ballot count at each polling place or at the central counting location or at a meeting convened under s. 6.88 (4) or 7.52 (1), the election officials shall witness a test of the automatic tabulating equipment by engaging the printing mechanism and securing a printed result showing a zero count for every candidate and referendum. After the completion of the count, the ballots and programs used shall be sealed and retained under the custody of the municipal clerk in a secure location.

SB685-SSA1,5 Section 5 . 5.85 (1) of the statutes is amended to read:

SB685-SSA1,7,16 5.85 (1) At any polling place at which an electronic voting system is utilized, the following procedures for receiving, counting, tallying, and return of the ballots shall be used. Whenever paper ballots are utilized at a polling place in combination with ballots employed in an electronic voting system, the paper ballots shall be deposited in a separate ballot box or boxes, according to the types of ballots used. For the purpose of transporting the ballots or the record of the votes cast, the municipal clerk shall provide a secure container for each polling place. At each polling place, the applicable portions of the procedure prescribed for initiating the canvass under s. 7.51 (1) and (2) shall be performed, except that no count of the ballots, except write-in votes and paper ballots used for absentee voting and other purposes authorized by law, may be performed at a polling place if a central counting location is designated for the counting of ballots at that polling place by the municipality.

SB685-SSA1,6 Section 6 . 5.85 (5) of the statutes is repealed.

SB685-SSA1,7 Section 7 . 5.86 of the statutes is repealed.

SB685-SSA1,8 Section 8 . 5.87 (1) of the statutes is amended to read:

SB685-SSA1,8,3 5.87 (1) If a central counting location is not utilized, the The procedure for tabulating the votes by the automatic tabulating equipment shall be under the direction of the chief inspector and shall conform to the requirements of the automatic tabulating equipment. If any ballot is not accepted by the automatic tabulating equipment, the election officials shall make a duplicate ballot to replace that ballot in the manner prescribed in s. 5.85 (3). All proceedings at the polling place and at any central counting location shall be open to the public, but no person, except those employed and authorized for the purpose, may touch any ballot, container, envelope, return, or equipment.

SB685-SSA1,9 Section 9 . 5.91 (17) of the statutes is amended to read:

SB685-SSA1,8,9 5.91 (17) Unless the ballot is counted at a central counting location, it It includes a mechanism for notifying an elector who attempts to cast an excess number of votes for a single office that his or her votes for that office will not be counted, and provides the elector with an opportunity to correct his or her ballot or to receive and cast a replacement ballot.

SB685-SSA1,10 Section 10 . 6.15 (4) (a) of the statutes is amended to read:

SB685-SSA1,8,15 6.15 (4) (a) Clerks holding new resident ballots shall deliver them to the election inspectors in the proper ward or election district where the new residents reside or, in municipalities where absentee ballots are canvassed under s. 7.52, to the municipal board of absentee ballot canvassers when it convenes at a meeting convened under s. 7.52 (1), as provided by s. 6.88 for absentee ballots.

SB685-SSA1,11 Section 11 . 6.15 (4) (b) of the statutes is amended to read:

SB685-SSA1,8,22 6.15 (4) (b) During polling hours, or on the day before the election under s. 6.88 (4), the inspectors shall open each carrier envelope, announce the elector's name, check the affidavit for proper execution, and check the voting qualifications for the ward, if any. In municipalities where absentee ballots are canvassed under s. 7.52, the municipal board of absentee ballot canvassers shall perform this function at a meeting of the board of absentee ballot canvassers.

SB685-SSA1,12 Section 12 . 6.33 (1) of the statutes is amended to read:

SB685-SSA1,9,25 6.33 (1) The commission shall prescribe the format, size, and shape of registration forms. All nonelectronic forms shall be printed and each item of information shall be of uniform font size, as prescribed by the commission. Except as otherwise provided in this subsection, electronic forms shall contain the same information as nonelectronic forms. The municipal clerk shall supply sufficient forms to meet voter registration needs. The commission shall design the form to obtain from each elector information as to name; date; residence location; location of previous residence immediately before moving to current residence location; citizenship; date of birth; age; the number of a current and valid operator's license issued to the elector under ch. 343 or the last 4 digits of the elector's social security account number; whether the elector has resided within the ward or election district for the number of consecutive days specified in s. 6.02 (1); whether the elector has been convicted of a felony for which he or she has not been pardoned, and if so, whether the elector is incarcerated, or on parole, probation, or extended supervision; whether the elector is disqualified on any other ground from voting , including being adjudicated incompetent to exercise the right to register to vote or to vote in an election; and whether the elector is currently registered to vote at any other location. The forms shall provide check boxes for the elector to indicate whether he or she is disqualified to vote and, if disqualified to vote, the grounds for which the elector is so disqualified. The commission shall include on the nonelectronic form a space for the elector's signature and on the electronic form the authorization specified under s. 6.30 (5). Below the space for the signature or authorization, respectively, the commission shall include the following statement: “Falsification of information on this form is punishable under Wisconsin law as a Class I felony." The commission shall include on the form a space to enter the name of any inspector, municipal clerk, or deputy clerk under s. 6.55 (2) who obtains the form and a space for the inspector, clerk, or deputy clerk to sign his or her name, affirming that the inspector, clerk, or deputy clerk has accepted the form. The commission shall include on the form a space for entry of the ward and aldermanic district, if any, where the elector resides and any other information required to determine the offices and referenda for which the elector is certified to vote. The commission shall also include on the form a space where the clerk may record an indication of whether the form is received by mail or by electronic application, a space where the clerk shall record an indication of the type of identifying document submitted by the elector as proof of residence under s. 6.34 or an indication that the elector's information in lieu of proof of residence was verified under s. 6.34 (2m), the name of the entity or institution that issued the identifying document, and, if the identifying document includes a number that applies only to the individual holding that document, that number. The commission shall also include on the form a space where the clerk, for any elector who possesses a valid voting identification card issued to the person under s. 6.47 (3), may record the identification serial number appearing on the voting identification card. Each county clerk shall obtain sufficient registration forms for completion by an elector who desires to register to vote at the office of the county clerk under s. 6.28 (4).

SB685-SSA1,13 Section 13 . 6.86 (1) (b) of the statutes is amended to read:

SB685-SSA1,11,17 6.86 (1) (b) Except as provided in this section, if application is made by mail, the application shall be received no later than 5 p.m. on the 5th day immediately preceding the election. If application is made in person, the application shall be made no earlier than 14 days preceding the election and no later than the Sunday preceding the election. No application may be received on a legal holiday. A municipality shall specify the hours in the notice under s. 10.01 (2) (e). The municipal clerk or an election official shall witness the certificate for any in-person absentee ballot cast. Except as provided in par. (c), if the elector is making written application for an absentee ballot at the partisan primary, the general election, the presidential preference primary, or a special election for national office, and the application indicates that the elector is a military elector, as defined in s. 6.34 (1), the application shall be received by the municipal clerk no later than 5 p.m. on election day. If the application indicates that the reason for requesting an absentee ballot is that the elector is a sequestered juror, the application shall be received no later than 5 p.m. on election day. If the application is received after 5 p.m. on the Friday immediately preceding the election, the municipal clerk or the clerk's agent shall immediately take the ballot to the court in which the elector is serving as a juror and deposit it with the judge. The judge shall recess court, as soon as convenient, and give the elector the ballot. The judge shall then witness the voting procedure as provided in s. 6.87 and shall deliver the ballot to the clerk or agent of the clerk who shall deliver it to the polling place election inspectors of the proper ward or election district or, in municipalities where absentee ballots are canvassed under s. 7.52, to the municipal clerk as required in s. 6.88. If application is made under sub. (2) or (2m), the application may be received no later than 5 p.m. on the Friday immediately preceding the election.

SB685-SSA1,14 Section 14 . 6.87 (6) of the statutes is amended to read:

SB685-SSA1,11,25 6.87 (6) The ballot shall be returned so it is delivered to the polling place election inspectors of the proper ward or election district no later than 8 p.m. on election day. Except in municipalities where absentee ballots are canvassed under s. 7.52, if the municipal clerk receives an absentee ballot on election day, the clerk shall secure the ballot and cause the ballot to be delivered to the polling place serving the elector's residence before 8 p.m. Any ballot not mailed or delivered as provided in this subsection may not be counted.

SB685-SSA1,15 Section 15. 6.88 (1) of the statutes is amended to read:

SB685-SSA1,12,17 6.88 (1) When an absentee ballot arrives at the office of the municipal clerk, or at an alternate site under s. 6.855, if applicable, the clerk shall enclose it, unopened, in a carrier envelope which shall be securely sealed and endorsed with the name and official title of the clerk, and the words “This envelope contains the ballot of an absent elector and must be opened in the same room where votes are being cast at the polls during polling hours on election day or, in municipalities where absentee ballots are canvassed under s. 7.52, stats., at a meeting of the municipal board of absentee ballot canvassers under s. 7.52, stats only as provided by law." If the elector is a military elector, as defined in s. 6.34 (1), or an overseas elector, regardless of whether the elector qualifies as a resident of this state under s. 6.10, and the ballot was received by the elector by facsimile transmission or electronic mail and is accompanied by a separate certificate, the clerk shall enclose the ballot in a certificate envelope and securely append the completed certificate to the outside of the envelope before enclosing the ballot in the carrier envelope. The clerk shall keep the ballot in the clerk's office or at the alternate site, if applicable until delivered, as required in sub. (2).

SB685-SSA1,16 Section 16 . 6.88 (2) of the statutes is amended to read:

SB685-SSA1,13,6 6.88 (2) When an absentee ballot is received by the municipal clerk prior to the delivery of the official ballots to the election officials of the ward in which the elector resides or, where absentee ballots are canvassed under s. 7.52, to the municipal board of absentee ballot canvassers, the municipal clerk shall seal the ballot envelope in the carrier envelope as provided under sub. (1), and shall enclose the envelope in a package and deliver the package to the election inspectors of the proper ward or election district or, in municipalities where absentee ballots are canvassed under s. 7.52, to the municipal board of absentee ballot canvassers when it convenes at a meeting convened under s. 7.52 (1). When the official ballots for the ward or election district have been delivered to the election inspectors before the receipt of an absentee ballot, the clerk shall immediately enclose the envelope containing the absentee ballot in a carrier envelope as provided under sub. (1) and deliver it in person to the proper election officials.

SB685-SSA1,17 Section 17. 6.88 (4) of the statutes is created to read:

SB685-SSA1,13,10 6.88 (4) (a) 1. The governing body of any municipality not specified in s. 7.52 (1) (a) may provide by ordinance that absentee ballots received by the municipal clerk may be canvassed on the day before the election.

SB685-SSA1,13,13 2. Prior to enacting an ordinance under subd. 1., the municipal clerk shall notify the commission in writing of the proposed enactment and shall consult with the commission concerning administration of this subsection.

SB685-SSA1,13,16 (am) In any municipality having an ordinance under par. (a), subject to pars. (b) to (f), the election inspectors may convene a meeting to begin canvassing absentee ballots no earlier than 7 a.m. on the day before the election.

SB685-SSA1,13,21 (b) The municipal clerk shall give at least 60 days' notice of a meeting under this subsection. Any member of the public has the same right of access to observe the proceedings at a meeting under this subsection that the individual would have under s. 7.41. The election inspectors may order the removal of any individual exercising the right to observe the proceedings if the individual disrupts the meeting.

SB685-SSA1,14,9 (c) 1. At 8 p.m. on the day before the election, and at 7 a.m., noon, and 8 p.m. on election day, the municipal clerk or his or her designee or municipal board of election commissioners shall provide to the county clerk of the county in which the municipality is located or the county board of election commissioners a statement that shows the total number of absentee ballots returned to the municipality and the total number of absentee ballots the election inspectors have canvassed under this subsection. The county clerk or county board of election commissioners shall promptly post each statement on the website on which returns for the county are posted on election night under s. 7.60. In a municipality having a municipal board of election commissioners, the statement required under this paragraph shall also be posted on the website maintained by the municipal board of election commissioners. The statement may not include the names or addresses of any electors.