Amendment ASA1-SB946

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2021 - 2022 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO SENATE BILL 946

February 24, 2022 - Offered by Representatives Petersen and Tauchen.

SB946-ASA1,1,7 An Act to repeal 8.20 (8) (am); to renumber and amend 7.52 (1) (a); to amend 5.84 (1), 6.15 (4) (a), 6.15 (4) (b), 6.86 (1) (b), 6.87 (6), 6.88 (1), 6.88 (2), 7.15 (1) (cm), 7.52 (2), 7.52 (3) (a), 7.52 (4) (a), 7.52 (9) and 8.20 (8) (a); and to create 6.19, 6.88 (4), 7.15 (16), 7.52 (1) (a) 2., 7.52 (1) (d) to (h), 7.52 (10) and 66.0512 of the statutes; relating to: transmitting and canvassing absentee ballots, presidential ballots, nomination papers for certain independent candidates, whistleblower protection for municipal clerks, 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.

Also under current law, other than as described above, votes, including votes cast by absentee ballot, are canvassed at the polling place after polls close on election day. However, in a municipality that uses an electronic voting system, the municipal clerk or municipal board of election commissioners may adjourn the vote canvass to a central counting location where votes cast at multiple polling places in the municipality and absentee ballots may all be counted after the polls close on election day.

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 no municipality may utilize a central counting location unless it has passed an ordinance providing for the canvassing of absentee ballots by a board of absentee ballot canvassers.

3. Provides that the board of absentee ballot canvassers must publicly convene at 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.

4. Requires that at 7 a.m., noon, and 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 must provide to the county clerk of the county in which the municipality is located a statement that shows the total number of absentee ballots returned to the municipality, the total number of absentee ballots the municipal board of absentee ballot canvassers has canvassed, and the total number of absentee ballots that remain to be canvassed. The county clerk must promptly post each statement on the Internet site on which the county clerk posts returns on election night. In a 1st class city, the city clerk or his or her designee may post the statement on the city clerk's Internet site. The statement may not include the names or addresses of any electors. An absentee ballot may be 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.

5. 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 municipality must conduct a recount after the election and must audit the election equipment to verify the accuracy of the absentee ballot count.

6. Provides that votes on absentee ballots canvassed early under the bill may not be tallied until after the canvass is complete or after the polls close on election day, whichever is later.

7. 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 accumulating or final results from the ballots canvassed under the bill before the canvass is complete or before the polls close on election day, whichever is later. 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.

8. Authorizes municipalities not utilizing a central counting location and not having a board of absentee ballot canvassers to begin processing absentee ballots beginning at 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.

Election night reporting

Under the bill, at 9 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 Internet site on which the county clerk posts returns on election night. In a 1st class city, the city clerk or his or her designee may post the statement on the city clerk's Internet site. The statement may not include the names or addresses of any electors. An absentee ballot may be 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.

Issuance of presidential ballots

Under current law, certain new and former residents of Wisconsin may apply for and receive a ballot for the purpose of voting only for candidates for president and vice president at a presidential election in Wisconsin. The bill prohibits poll workers and other election officials from providing a ballot used for voting for the offices of president and vice president only, unless the elector is a new or former resident of the state and applies and qualifies for the presidential ballot as provided by law.

Timeline for sending or transmitting absentee ballots

Current law requires a municipal clerk to send an absentee ballot for each partisan primary, presidential preference primary, and general election to all electors requesting the ballot, including military and overseas electors, no later than the 47th day before the partisan primary, presidential preference primary, or general election or, if the request is not made before that day, within one business day after the request is received. For all other primaries and elections, the municipal clerk must send or transmit the absentee ballot no later than the 21st day before the primary or election or, if the request is not made before that day, within one business day after the request is received.

Under the bill, a municipal clerk must send or transmit an absentee ballot for all primaries and elections, regardless of the type of primary or election, to electors other than military and overseas electors no later than the 21st day before the primary or election or, if the request is not made before that day, within one business day after the request is received. Under the bill, a municipal clerk must send or transmit an absentee ballot for all primaries and elections, regardless of the type of primary or election, to military and overseas electors no later than the 45th day before the primary or election or, if the request is not made before that day, within one business day after the request is received. That 45th day timeline is consistent with federal law.

Nomination papers for certain independent candidates

Under current law, nomination papers for independent candidates for any office to be voted upon at a general election, except president and vice president, may be circulated no sooner than the April 15 preceding the general election and must be filed no later than 5 p.m. on the June 1 preceding the partisan primary, which is held on the second Tuesday in August preceding the general election. Under current law, nomination papers for independent candidates for president and vice president may be circulated no sooner than the July 1 preceding the general election and must be filed no later than 5 p.m. on the first Tuesday in August preceding a presidential election.

Under the bill, the timeline for circulating and filing nomination papers for independent candidates for president and vice president is the same as that for all other independent candidates for offices to be voted on at the general election: nomination papers may be circulated no sooner than the April 15 preceding the general election and must be filed no later than the June 1 preceding the partisan primary.

Whistleblower protections

The bill provides whistleblower protection for municipal clerks who witness and report election fraud or irregularities. Under the bill, no municipal clerk may be discriminated against in regard to employment, including by being discharged, disciplined, or demoted, as a reprisal because the clerk lawfully reported, or is believed to have reported, witnessing what the clerk reasonably believed to be election fraud or irregularities.

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

SB946-ASA1,1 Section 1. 5.84 (1) of the statutes is amended to read:

SB946-ASA1,6,3 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 Internet site 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.

SB946-ASA1,2 Section 2. 6.15 (4) (a) of the statutes is amended to read:

SB946-ASA1,6,9 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.

SB946-ASA1,3 Section 3. 6.15 (4) (b) of the statutes is amended to read:

SB946-ASA1,6,16 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.

SB946-ASA1,4 Section 4. 6.19 of the statutes is created to read:

SB946-ASA1,6,20 6.19 Presidential ballots. (1) In this section, “presidential ballot” means a ballot that allows an elector to vote only for candidates for president and vice president.

SB946-ASA1,6,23 (2) No election inspector or other election official may provide a presidential ballot to an elector for voting at a presidential election, except as provided under ss. 6.15 and 6.18.

SB946-ASA1,5 Section 5. 6.86 (1) (b) of the statutes is amended to read:

SB946-ASA1,7,25 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.

SB946-ASA1,6 Section 6. 6.87 (6) of the statutes is amended to read:

SB946-ASA1,8,8 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.

SB946-ASA1,7 Section 7. 6.88 (1) of the statutes is amended to read:

SB946-ASA1,8,25 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).

SB946-ASA1,8 Section 8. 6.88 (2) of the statutes is amended to read:

SB946-ASA1,9,14 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.

SB946-ASA1,9 Section 9. 6.88 (4) of the statutes is created to read:

SB946-ASA1,9,18 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.

SB946-ASA1,9,21 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.

SB946-ASA1,9,24 (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 beginning at 7 a.m. on the day before the election.

SB946-ASA1,10,5 (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.

SB946-ASA1,10,16 (c) 1. At 7 a.m., noon, and 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 shall provide to the county clerk of the county in which the municipality is located a statement that shows the total number of absentee ballots returned to the municipality, the total number of absentee ballots the election inspectors have canvassed under this subsection, and the total number of absentee ballots that remain to be canvassed. The county clerk shall promptly post each statement on the Internet site on which the county posts returns on election night under s. 7.60. In a 1st class city, the city clerk or his or her designee may post the statement required under this paragraph on the city clerk's Internet site. The statement may not include the names or addresses of any electors.

SB946-ASA1,10,19 2. An absentee ballot may be considered canvassed for purposes of subd. 1. only after all tasks have been completed in the canvassing process except for the tallying of votes.

SB946-ASA1,11,9 (d) When the meeting of the election inspectors recesses on the day before the election, the election inspectors shall 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 on election day, the election inspectors shall check and record the status of each tamper-evident seal. The election inspectors shall immediately notify the commission of any evidence of tampering. If the election inspectors discover 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 as provided in s. 5.84. If the election inspectors discover evidence of tampering under this paragraph, the municipality shall conduct a recount after the election of all absentee ballots cast in the municipality in the election in the manner provided under s. 9.01 and shall audit the election equipment to verify the accuracy of the absentee ballot count in the municipality in the election.

SB946-ASA1,11,12 (e) Votes on absentee ballots canvassed under this subsection may not be tallied until after the canvass is complete or after the polls close on election day, whichever is later.

SB946-ASA1,11,17 (f) No person may intentionally act in a manner that would give him or her the ability to know or to provide information on the accumulating or final results from the ballots canvassed under this subsection before the canvass is complete or before the polls close on election day, whichever is later. Whoever intentionally violates this paragraph is guilty of a Class I felony.

SB946-ASA1,10 Section 10. 7.15 (1) (cm) of the statutes is amended to read: