AB244: Bill Text

LRB-2239/1

JK&MPG:skw

2021 - 2022 LEGISLATURE

2021 Assembly BILL 244

April 6, 2021 - Introduced by Representatives Kurtz, Riemer, Novak, Kitchens, Drake, Tusler, Skowronski, B. Meyers, Considine, Subeck, Anderson, Hebl, Vruwink, Moses, Andraca, McGuire, Dallman, Shankland and Emerson, cosponsored by Senators Kooyenga and Smith. Referred to Committee on Campaigns and Elections.

AB244,1,7 An Act to renumber and amend 7.60 (4) (c) and 8.16 (1); to amend 5.01 (3) (a), 5.01 (4) (a), 5.35 (6) (b), 5.62 (1) (a), 5.62 (1) (b) 2., 5.62 (2) (b), 5.62 (3), 5.81 (4), 5.84 (1), 5.91 (1), 5.91 (6), 6.80 (2) (am), 7.10 (2), 7.50 (1) (b), 7.50 (1) (c), 7.50 (1) (d), 7.60 (4) (a), 8.50 (3) (b), 8.50 (3) (c) and 10.02 (3) (b) 2.; and to create 5.20, 5.62 (3m), 6.80 (2) (g), 7.60 (4) (c) 3., 7.60 (4) (c) 4., 7.62 and 8.16 (1) (b) of the statutes; relating to: top-five primaries and instant runoff voting for the offices of U.S. senator and U.S. representative in Congress.

Analysis by the Legislative Reference Bureau

Top-five primaries for certain national offices

Under current law, electors voting in a partisan primary may select the party whose candidates they wish to vote for and may cast votes for candidates only within that political party. The single candidate who receives the greatest number of votes for each office within each party is nominated to appear on the general election ballot. Independent candidates and candidates of minor parties that do not qualify for a separate party ballot, column, or row do not appear on the partisan primary ballot.

This bill provides that electors may vote in the primary for U.S. senator and representative in Congress for any candidate regardless of party affiliation, and the five persons who receive the greatest numbers of votes for each such office are nominated to appear on the general election ballot. Under the bill, independent candidates for such offices and candidates of minor parties appear on the top-five primary ballot, and electors may vote for these candidates in the same manner as other candidates.

Instant runoff voting for certain national offices in general elections

This bill requires instant runoff voting at the general election for U.S. senator and representative in Congress. Under instant runoff voting, voters uses a ranked-choice voting ballot and have the option to cast their vote for each office in order of preference. If a voter ranks more than one candidate for an office, the voter must indicate a preference between the candidates by designating one as “first choice," another as “second choice," and subsequent choices in sequential preference. A voter may also indicate as one of their preferences one or more write-in candidates for any office.

If any candidate receives a majority of the first-choice preferences cast, that candidate is elected. If no candidate receives a majority of the first-choice preferences for an office or seat, the name of the candidate receiving the least number of first-choice preferences is dropped, and the second-choice preferences of the voters who preferred that candidate, if any, are then added to the first-choice preferences received by the other candidates. If any candidate for the office or seat then has a majority of the combined first-choice and reallocated preferences, that candidate is elected. If not, the procedure is repeated until one candidate receives a majority of the combined first-choice and reallocated preferences.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

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

AB244,1 Section 1. 5.01 (3) (a) of the statutes is amended to read:

AB244,2,5 5.01 (3) (a) Except as provided in par. (b), and s. 5.20, in every election to choose any officer, each elector has one vote for each office unless clearly indicated otherwise. The person receiving the greatest number of legal votes for the office shall be declared elected, and the canvassers shall so determine and certify.

AB244,2 Section 2 . 5.01 (4) (a) of the statutes is amended to read:

AB244,3,4 5.01 (4) (a) If Except as provided under s. 7.62 (6), if 2 or more candidates for the same office receive the greatest, but an equal number of votes, the winner shall be chosen by lot in the presence of the board of canvassers charged with the responsibility to determine the election, or in the case of an election for state or national office or metropolitan sewerage commissioner, if the commissioner is elected under s. 200.09 (11) (am), in the presence of the chairperson of the elections commission or the chairperson's designee.

AB244,3 Section 3 . 5.20 of the statutes is created to read:

AB244,3,10 5.20 Instant runoff voting. (1) In this section, “instant runoff voting" means a voting method in which the electors voting at the general election for U.S. senator or representative in Congress use a ranked-choice voting ballot that permits them to indicate and order their preferences for all candidates whose names appear on the ballot for the same office as provided under sub. (3).

AB244,3,14 (2) Using a ranked-choice voting ballot, an elector may indicate his or her preferences for each office, for up to 5 candidates. An elector may indicate a preference for a write-in candidate. An elector is not required to rank more than one candidate and may rank up to 5 candidates.

AB244,3,16 (3) (a) For any election using instant runoff voting, the ballot shall allow electors to rank candidates in order of preference, including write-in candidates.

AB244,3,17 (b) The ballot shall allow electors to rank up to 5 candidates.

AB244,3,20 (c) The ballot shall not interfere with an elector's ability to rank a write-in candidate, but a vote for a write-in candidate may only be counted as provided under s. 7.50 (2) (em).

AB244,4 Section 4. 5.35 (6) (b) of the statutes is amended to read:

AB244,4,7 5.35 (6) (b) At each polling place in the state where a consolidated ballot under s. 5.655 is used or an electronic voting system is utilized at a partisan primary election incorporating a ballot upon which electors may mark votes for candidates of more than one recognized political party, the municipal clerk or board of election commissioners shall prominently post a sign in the form prescribed by the commission warning electors in substance that on any ballot with votes cast for candidates of more than one recognized political party, other than candidates for the offices of U.S. senator and U.S. representative in Congress, no votes cast for any candidates for partisan office will be counted unless a preference for a party is made. If the elector designates a preference, only votes cast for candidates of that preference will be counted.

AB244,5 Section 5. 5.62 (1) (a) of the statutes is amended to read:

AB244,4,25 5.62 (1) (a) At the partisan primary, the following ballot shall be provided for the nomination of candidates of recognized political parties for national, state and county offices and independent candidates for state office in each ward, in the same form as prescribed by the commission under s. 7.08 (1) (a), except as authorized in s. 5.655. The ballots shall be made up of the several party tickets with each party entitled to participate in the primary under par. (b) or sub. (2) having its own ballot, except as authorized in s. 5.655. The ballots shall be secured together at the bottom. The party ballot of the party receiving the most votes for president or governor at the last general election shall be on top with the other parties arranged in descending order based on their vote for president or governor at the last general election. The ballots of parties qualifying under sub. (2) shall be placed after the parties qualifying under par. (b), in the same order in which the parties filed petitions with the commission. Any ballot required under par. (b) 2. shall be placed next in order. At polling places where voting machines are used, each party shall be represented in one or more separate columns or rows on the ballot. At polling places where an electronic voting system is used other than an electronic voting machine, each party may be represented in separate columns or rows on the ballot.

AB244,6 Section 6. 5.62 (1) (b) 2. of the statutes is amended to read:

AB244,5,15 5.62 (1) (b) 2. Subdivision 1. applies to a party within any assembly district or county at any partisan primary election only if at least one candidate of the party for any national, state or county office qualifies to have his or her name appear on the ballot under the name of that party within that assembly district or county. The county clerk or county board of election commissioners shall provide a combined separate ballot or one or more separate columns or rows on the ballot that will permit an elector to cast a vote for a write-in candidate for the nomination of any such party for each national, state and county office whenever that party qualifies to be represented on a separate primary ballot or in one or more separate columns or rows under subd. 1. but does not qualify under this subdivision. The ballot shall include the name of each party qualifying for a separate ballot or one or more separate columns or rows on the ballot under each office, with the names of the candidates for each such party appearing in the same order in which the ballots of the parties would appear under par. (a).

AB244,7 Section 7. 5.62 (2) (b) of the statutes is amended to read:

AB244,6,5 5.62 (2) (b) Paragraph (a) applies to a party within any assembly district or county at any partisan primary election only if at least one candidate of the party for any national, state or county office qualifies to have his or her name appear on the ballot under the name of that party within that assembly district or county. The county clerk or county board of election commissioners shall provide a combined separate ballot or one or more separate columns or rows on the ballot that will permit an elector to cast a vote for a write-in candidate for the nomination of any such party for each national, state and county office whenever that party qualifies to be represented on a separate primary ballot or in one or more separate columns or rows under par. (a) but does not qualify under this paragraph. The ballot shall include the name of each party qualifying for a separate ballot or one or more separate columns or rows on the ballot under each office, with the names of the candidates for each such party appearing in the same order in which the ballots of the parties would appear under sub. (1) (a).

AB244,8 Section 8. 5.62 (3) of the statutes is amended to read:

AB244,6,15 5.62 (3) The commission shall designate the official primary ballot arrangement for statewide offices and district attorney within each prosecutorial district by using the same procedure as provided in s. 5.60 (1) (b). On each ballot and on each separate column or row on the ballot, the candidates for office shall be listed together with the offices which they seek in the following order whenever these offices appear on the partisan primary ballot: governor, lieutenant governor, attorney general, secretary of state, state treasurer, U.S. senator, U.S. representative in congress, state senator, representative to the assembly, district attorney and the county offices.

AB244,9 Section 9. 5.62 (3m) of the statutes is created to read:

AB244,6,24 5.62 (3m) At the partisan primary, the following ballot shall be provided for the nomination of candidates for U.S. senator and U.S. representative in Congress, in the same form as prescribed by the commission under s. 7.08 (1) (a), except as authorized in s. 5.655. The names of all candidates shall appear on the ballot. Below the name of each candidate shall appear the candidate's political party or the candidate's political party preference or statement of principles, if any, in 5 words or less, as shown on the candidate's nomination papers. The order of candidates on the ballot shall be determined by lot by or under the supervision of the commission.

AB244,10 Section 10. 5.81 (4) of the statutes is amended to read:

AB244,7,5 5.81 (4) In partisan primary elections, except with respect to the offices of U.S. senator and U.S. representative in Congress, if a ballot contains the names of candidates of more than one party, it shall provide a space for electors to designate a party preference. Failure to designate a preference does not invalidate any votes cast by an elector, except as provided in s. 7.50 (1) (d).

AB244,11 Section 11. 5.84 (1) of the statutes is amended to read:

AB244,8,2 5.84 (1) Where any municipality employs an electronic voting system which 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, 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 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, except with respect to the offices of U.S. senator and U.S. representative in Congress, 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.

AB244,12 Section 12 . 5.91 (1) of the statutes is amended to read:

AB244,8,6 5.91 (1) It enables an elector to vote in secrecy and, except with respect to the offices of U.S. senator and U.S. representative in Congress, to select the party for which an elector will vote in secrecy at a partisan primary election.

AB244,13 Section 13. 5.91 (6) of the statutes is amended to read:

AB244,8,14 5.91 (6) The Except with respect to the offices of U.S. senator and U.S. representative in Congress, the voting device or machine permits an elector in a primary election to vote for the candidates of the recognized political party of his or her choice, and the automatic tabulating equipment or machine rejects any ballot on which votes are cast in the primary of more than one recognized political party, except where a party designation is made or where an elector casts write-in votes for candidates of more than one party on a ballot that is distributed to the elector.

AB244,14 Section 14 . 6.80 (2) (am) of the statutes is amended to read:

AB244,8,22 6.80 (2) (am) In partisan primaries, except with respect to the offices of U.S. senator and U.S. representative in Congress, an elector may vote for a person as the candidate of the party of the elector's choice, if that person's name does not appear on the official ballot of that party, by writing in the name of the person in the space provided on the ballot or the ballot provided for that purpose, or where voting machines are used, in the irregular ballot device, designating the party for which the elector desires such person to be the nominee.

AB244,15 Section 15 . 6.80 (2) (g) of the statutes is created to read:

AB244,9,3 6.80 (2) (g) In elections for offices at which instant runoff voting under s. 5.20 is used, an elector may indicate his or her preferences for each office, for up to 5 candidates, including a write-in candidate. An elector who indicates preferences for candidates for an office must indicate a different preference for each candidate for that office.

AB244,16 Section 16 . 7.10 (2) of the statutes is amended to read:

AB244,9,14 7.10 (2) Preparing ballots. The county clerk shall prepare copy for the official ballots immediately upon receipt of the certified list of candidates' names from the commission. Names certified by the commission shall be arranged in the order certified. The county clerk shall place the names of all candidates filed in the clerk's office or certified to the clerk by the commission on the proper ballot or ballots under the appropriate office and party titles. The county clerk shall prepare a special ballot under s. 5.60 (8) showing only the candidates in the presidential preference primary. The county clerk shall prepare a special ballot under s. 5.62 (3m) showing only the candidates for the offices of U.S. senator and U.S. representative in Congress in the partisan primary.

AB244,17 Section 17 . 7.50 (1) (b) of the statutes is amended to read:

AB244,9,22 7.50 (1) (b) When an elector casts more votes for any office or measure than he or she is entitled to cast at an election, all the elector's votes for that office or measure are invalid and the elector is deemed to have voted for none of them, except as provided in par. (c) and, sub. (2) (d), and s. 7.62. If an elector casts less votes for any office or measure than he or she is entitled to cast at an election, all votes cast by the elector shall be counted but no vote shall be counted more than once , except as provided in s. 7.62.

AB244,18 Section 18 . 7.50 (1) (c) of the statutes is amended to read:

AB244,10,3 7.50 (1) (c) If an elector casts more than one vote for the same candidate for the same office, the first vote is valid and the remaining votes are invalid , except as provided in s. 7.62.

AB244,19 Section 19. 7.50 (1) (d) of the statutes is amended to read:

AB244,10,15 7.50 (1) (d) Whenever an electronic voting system is used at a polling place in a partisan primary, and the same ballot is utilized to cast votes for candidates of more than one recognized political party or candidates of a party and independent candidates, except with respect to the offices of U.S. senator and U.S. representative in Congress, if an elector designates a preference for a party or for independent candidates, only votes cast within that preference category may be counted. If an elector does not designate a preference and makes a mark opposite candidates of more than one recognized political party or opposite a candidate in the independent candidates' column and a candidate of a recognized political party, no votes cast by the elector for any candidate for partisan office are valid. Votes for other candidates and votes on ballot questions, if any, shall be counted if otherwise valid.

AB244,20 Section 20 . 7.60 (4) (a) of the statutes is amended to read:

AB244,11,12 7.60 (4) (a) The board of canvassers shall make separate duplicate statements showing the numbers of votes cast for the offices of president and vice president; state officials; U.S. senators and representatives in congress Congress; state legislators; justice; court of appeals judge; circuit judges; district attorneys; and metropolitan sewerage commissioners, if the commissioners are elected under s. 200.09 (11) (am). If a municipal judge elected under s. 755.01 (4) serves a municipality that is located partially within the county and candidates for that judgeship file nomination papers in another county, the board of canvassers shall prepare a duplicate statement showing the numbers of votes cast for that judgeship in that county for transmittal to the other county. For partisan candidates, the statements shall include the political party or principle designation, if any, next to the name of each candidate. The board of canvassers shall also prepare a statement showing the results of any county, technical college district, or statewide referendum. Each statement shall state the total number of votes cast in the county for each office; the names of all persons for whom the votes were cast, as returned; the number of votes cast for each person; the number of round-by-round votes cast for each person receiving votes at a general election; and the number of votes cast for and against any question submitted at a referendum. The board of canvassers shall use one copy of each duplicate statement to report to the elections commission, technical college district board, or board of canvassers of any other county and shall file the other statement in the office of the county clerk or board of election commissioners.

AB244,21 Section 21 . 7.60 (4) (c) of the statutes is renumbered 7.60 (4) (c) (intro.) and amended to read:

AB244,11,21 7.60 (4) (c) (intro.) In preparing the statements and determinations, the board of canvassers shall carefully review the tally sheets and inspectors' statement. The board of canvassers may omit the names of individuals whose names do not appear on the ballot and who receive a comparatively small number of votes. The board of canvassers shall designate votes received by such individuals as scattering votes. The board of canvassers shall append the following to each statement and determination a :

AB244,11,24 1. A tabulation of the votes cast at each election district, ward, or combination of wards authorized under s. 5.15 (6) (b) in the county for each office and each individual, whether the votes are canvassed or not, as well as the.

AB244,12,3 2. The total canvassed votes cast for each individual and each office, except where scattering votes are designated. If any votes are rejected, the board of canvassers shall specify the reasons therefor.

AB244,22 Section 22 . 7.60 (4) (c) 3. of the statutes is created to read:

AB244,12,7 7.60 (4) (c) 3. After elections at which instant runoff voting under s. 5.20 is used, the number of first-choice preferences and lesser-choice preferences cast for each individual for each office, indicating the numbers for each choice.

AB244,23 Section 23 . 7.60 (4) (c) 4. of the statutes is created to read:

AB244,12,10 7.60 (4) (c) 4. For each rejected vote, the board of canvassers' explanation for rejecting the vote.

AB244,24 Section 24 . 7.62 of the statutes is created to read:

AB244,12,13 7.62 Canvass procedure for instant runoff voting. (1) Definitions. In this section:

AB244,12,15 (a) “Active candidate” means any candidate that has not been defeated or elected.

AB244,12,17 (b) “Exhausted ballot” means a ballot that does not contain a highest-ranked active candidate and is not an abstention or an overvote.

AB244,12,19 (c) “Highest-ranked active candidate” means the active candidate assigned to a higher ranking than any other active candidates.

AB244,12,21 (d) “Overvote” means an instance in which an elector has ranked more than one candidate at the same ranking.

AB244,12,24 (e) “Ranking order” means the number available to be assigned by an elector to a candidate to express the elector's preference for that candidate. The number “1” is the highest ranking order, followed by “2,” and then “3,” and so on.

AB244,13,2 (f) “Round” means an instance of the sequence of voting tabulation beginning with sub. (3) (a).

AB244,13,6 (2) Tally sheets. The commission shall prescribe a tally sheet form for canvassing of the elections in which instant runoff voting under s. 5.20 is used. The inspectors shall use the form in preparing the returns and shall retain the form as a part of the official returns.

AB244,13,9 (3) Tabulation. In any election for exactly one office conducted by instant runoff voting under s. 5.20, tabulation proceeds in rounds. Each round proceeds sequentially as follows:

AB244,13,13 (a) Each ballot shall count as one vote for the highest-ranked active candidate on that ballot. If 2 or fewer active candidates remain, the candidate with the fewest votes is defeated, the candidate with the greatest number of votes is elected, and tabulation is complete.