SB935: Bill Text

2021 Senate BILL 935

February 3, 2022 - Introduced by Senators Bernier, Cowles, Darling, Stroebel, Felzkowski and Marklein, cosponsored by Representatives Macco, Armstrong, Edming, Gundrum, Knodl, Krug, Kuglitsch, Magnafici, Moses, Murphy, Mursau, Penterman, Schraa and Spiros. Referred to Committee on Elections, Election Process Reform and Ethics.

SB935,2,2 An Act to renumber 6.875 (4) (b) and 6.875 (6) (e); to renumber and amend 6.87 (6d), 6.87 (9) and 7.51 (1); to amend 6.87 (2) (intro.), 6.875 (4) (a), 6.875 (6) (a), 6.875 (6) (c) 2., 7.03 (1) (d), 7.30 (3) (a), 7.315 (1) (a), 7.53 (2) (cm) and 12.60 (1) (a); and to create 6.87 (6d) (a) to (L), 6.87 (9) (b), 6.875 (4) (b) 2., 6.875 (6) (e) 2., 6.875 (8), 7.30 (7), 7.51 (1) (b), 12.085, 12.13 (2) (b) 9., 12.13 (2) (b) 10., 12.13 (2) (b) 11., 12.13 (3) (zp) and 12.13 (3m) of the statutes; relating to: certain kinds of election fraud, private resources and contracts for election administration, who may perform tasks related to election administration, defects on absentee ballot certificates, returning absentee ballots to the office of the municipal clerk, appointment of election officials, allowing an employee of a residential care facility or qualified retirement home to serve as a personal care voting assistant during a public health emergency or an incident of infectious disease, and providing a penalty.

Analysis by the Legislative Reference Bureau

Retirement homes and residential care facilities

Personal care voting assistants

Under current law, absentee voting in person inside residential care facilities and qualified retirement homes may be conducted only if the municipal clerk or board of election commissioners adopts procedures allowing voters residing in such a facility or home to apply for, receive, and complete an absentee ballot by means of special voting deputies dispatched to the facility or home for that purpose. A municipality that appoints special voting deputies must appoint at least two special voting deputies for the municipality and the deputies must be eligible voters of the county where the municipality is located. In addition, the two deputies designated to visit each qualified retirement home and residential care facility must be affiliated with different political parties whenever deputies representing different parties are available. Current law prohibits individuals employed at a residential care facility or qualified retirement home in the municipality, or any member of the individual's immediate family, from serving as a special voting deputy.

Under this bill, during a public health emergency or an incident of infectious disease that results in restricting entry to a residential care facility or qualified retirement home, the municipal clerk or board of election commissioners may appoint any individual who is employed at a residential care facility or qualified retirement home in the municipality to serve as a personal care voting assistant. A personal care voting assistant need not be an eligible voter of the county, but must be an eligible voter of this state. A personal care voting assistant must complete a two-hour online training prescribed by the Elections Commission and take the same oath of office as a special voting deputy appointed under current law. In addition, the two personal care voting assistants appointed to each facility or home must be affiliated with different political parties whenever assistants representing different parties are available. The bill also prohibits a personal care voting assistant from assisting in or facilitating the registration of any resident of a residential care facility or qualified retirement home.

Under the bill, an employee of the facility or home acting as a personal care voting assistant must complete documentation, on a form prescribed by the Elections Commission, that provides the assistant's name, the name of the voter, and the type of assistance provided to the voter. The form must be separate from the absentee ballot certificate, but the information contained on the form must also be included on the absentee ballot return envelope. The administrator of the home or facility must deliver the forms to the municipal clerk or board of election commissioners and may arrange for an election official, other than a personal care voting assistant, to collect and return the absentee ballots to the clerk or board. Otherwise, all absentee ballots completed with the assistance of a personal care voting assistant must be mailed to the clerk or board.

Entry to a facility

The bill prohibits residential care facilities and qualified retirement homes from denying entry to special voting deputies appointed under current law, except when the facility or home is closed to the public during a public health emergency or an incident of infectious disease. Under the bill, if a home or facility is closed to the public during such an emergency or incident, the home or facility must allow personal care voting assistants to supervise the absentee voting procedure used by occupants of the home or facility.

In addition, under the bill, no administrator of a qualified retirement home or residential care facility may deny a special voting deputy from entering the home or facility unless the governor declares a public health emergency within 60 days preceding the election for which the deputies are appointed or the Department of Health Services or the federal Centers for Medicare or Medicaid Services recommends that the family members of the occupants of a home or facility be denied access to the home or facility.

Visits to facilities

Under current law, the special voting deputies must, not later than 5 p.m. on the sixth working day preceding an election, arrange with the administrator of the qualified retirement home or residential care facility one or more convenient times to visit the home or facility. The administrator of the home or facility may, upon the request of a relative of an occupant of the home or facility notify the relative of the time or times at which special voting deputies will conduct absentee voting at the home or facility. Current law also requires that the visits may be no earlier than the fourth Monday preceding the election and no later than 5 p.m. on the Monday preceding the election

Under the bill, the special voting deputies must make arrangements to visit the qualified retirement homes or residential care facilities no later than 5 p.m. on the 11th working day preceding the election, and the visits may be no earlier than the fourth Monday preceding the election and no later than 5 p.m. on the sixth working day preceding the election. This bill also requires the administrator to provide notice of the dates and times when the deputies or absentee voting assistants will be assisting voters at the home or facility to the relatives for whom the home or facility has contact information.

Under current law, if an eligible voter at a residential care facility or qualified retirement home is not able to cast his or her ballot on two separate visits by special voting deputies to the home or facility, the deputies must notify the municipal clerk or board of election commissioners. The clerk or board may then send the voter an absentee ballot no later than the Friday before the election. Under the bill, if an eligible voter of a facility or home is not able to cast his or her ballot on two separate visits by the special voting deputies because access to the home or facility is restricted due to a public health emergency or incident of infectious disease, the deputies must notify the municipal clerk or board of election commissioners. The clerk or board may then send the voter an absentee ballot as provided under current law.

Penalty

Finally, the bill provides that an employee of a qualified retirement home or residential care facility who coerces an occupant of the home or facility to apply for or not apply for an absentee ballot or to cast or refrain from casting a ballot or who coerces an occupant to cast a ballot for or against a particular candidate or ballot question is guilty of a Class I felony. In addition, an employee of a qualified retirement home or residential care facility who coerces an occupant of the home or facility to register or not register to vote is guilty of a Class I felony.

Use of private resources for election administration

Under the bill, no official or agent of a state agency, county, city, village, or town may apply for or accept any donation or grant of moneys, equipment, materials, or personnel from an individual or nongovernmental entity for purposes of election administration, except as expressly authorized under the statutes relating to elections. Additionally, the bill provides that no official or agent of a state agency, county, city, village, or town may enter into a contract related to election administration that includes any of the following:

1. Any requirement governing election administration.

2. The transfer of any duty or power related to election administration to a person not having that duty or power under Wisconsin law.

Under the bill, whoever violates one of the prohibitions described above 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.

The bill also makes it a Class I felony for any person to assist in counting or tabulating votes at an election unless the person is a resident of this state, is an election official who is trained to the extent provided by law, and has signed the official oath and returned it to the municipal clerk with respect to that election. Additionally, under the bill, it is a Class I felony for any individual other than an election official or a vendor of an electronic voting system to perform any task in election administration.

Election fraud

Current law prohibits election officials from committing certain kinds of election fraud, including permitting a person to register to vote or vote when the election official knows the person is not qualified to do so. The bill provides further that no election official may do any of the following:

1. Intentionally assist or cause the casting or counting of a vote or the receipt of a registration that the election official knows is invalid.

2. Intentionally assist or cause a vote or registration to be rejected when the election official knows the vote or registration is valid.

3. Intentionally fail to promptly report election fraud committed by another election official.

Under the bill, election officials violating the prohibitions described above are subject to a Class I felony.

Absentee ballot certificates

Under current law, absentee ballot envelopes include a printed certificate that must be completed, signed by the voter and a qualified witness, and returned to the municipal clerk with the completed ballot so that it is delivered to the polling place no later than 8 p.m. on election day. By completing and signing the certificate, the voter certifies that he or she is entitled to vote in the election and that the voter completed his or her absentee ballot in the presence of the witness. The witness certificate includes the witness's printed name and address in addition to his or her signature. If a municipal clerk receives an absentee ballot with an improperly completed certificate or with no certificate, the clerk may, but is not required to, return the ballot to the voter whenever time permits so that the voter may correct the defect. If a certificate is missing the address of the witness, the ballot may not be counted.

Under the bill, if a municipal clerk receives an absentee ballot with an improperly completed certificate or with no certificate, in addition to being authorized to return the ballot to the elector, the clerk is required to post a notification of the defect on the voter's voter information page on the Internet site that is used by voters for original registration, currently titled MyVote Wisconsin. Additionally, under the bill, the clerk may attempt to notify the voter of the defect by other means.

Additionally, under the bill, an absentee ballot with no certificate or with a certificate that does not include all of the following may not be counted:

1. The voter 's printed first name.

2. The voter's printed last name.

3. The voter's house or apartment number.

4. The voter's street name.

5. The voter's municipality.

6. The voter's signature.

7. The witness's printed first name.

8. The witness's printed last name.

9. The witness's house or apartment number.

10. The witness's street name.

11. The witness's municipality.

12. The witness's signature.

Finally, the bill prohibits any person other than the voter, or the witness with respect to the witness certificate, from correcting a defect in the voter's absentee ballot certificate. Whoever violates that prohibition is subject to fine not to exceed $500 or imprisonment not to exceed 30 days, or both.

Appointment of poll workers

The bill prohibits the appointment of any poll worker who is an employee of any of the following:

1. A candidate committee, legislative campaign committee, political action committee, independent expenditure committee, political party, recall committee, or referendum committee, as those terms are defined by law.

2. A political organization required to register with the Federal Elections Commission.

3. An issue advocacy group.

Municipal board of canvassers

Current law requires that the municipal board of canvassers of each municipality convene immediately following the close of the polls on election day to publicly canvass the ballots cast. The board may not adjourn until the canvass is completed, except that the board may adjourn and reconvene at a central count location to complete the canvass. Current law also requires the municipal clerk to appoint an individual to serve as a member of the board of canvassers if there are one or more temporary vacancies on the board and the number of available members to canvass the ballots is less than three.

The bill allows a municipal board of canvassers to recess as the result of a natural disaster, if a board member is ill or otherwise incapacitated, or if the physical condition of the canvass location is unsuitable for continuing the canvass. However, the bill requires that the board reconvene as soon as possible. In addition, if the board recesses because a member is ill or otherwise incapacitated, the bill requires the municipal clerk to immediately appoint an individual to fill the vacancy on the board to temporarily replace that member.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report.

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:

SB935,1 Section 1 . 6.87 (2) (intro.) of the statutes is amended to read:

SB935,7,7 6.87 (2) (intro.) Except as authorized under sub. (3) (d), the municipal clerk shall place the ballot in an unsealed envelope furnished by the clerk. The envelope shall have the name, official title and post-office address of the clerk upon its face. The other side of the envelope shall have a printed certificate which shall include a space for the municipal clerk or deputy clerk to enter his or her initials indicating that if the absentee elector voted in person under s. 6.86 (1) (ar), the elector presented proof of identification to the clerk and the clerk verified the proof presented. The certificate shall also include a space for the municipal clerk or deputy clerk to enter his or her initials indicating that the elector is exempt from providing proof of identification because the individual is a military elector or an overseas elector who does not qualify as a resident of this state under s. 6.10 or is exempted from providing proof of identification under sub. (4) (b) 2. or 3. The certificate shall include a distinct field for each item required to be entered under sub. (6d) and shall be in substantially the following form:

SB935,2 Section 2 . 6.87 (6d) of the statutes is renumbered 6.87 (6d) (intro.) and amended to read:

SB935,7,12 6.87 (6d) (intro.) If a certificate is missing the address of a witness, the ballot An absentee ballot with no certificate or with a certificate that does not include all of the following may not be counted.:

SB935,3 Section 3 . 6.87 (6d) (a) to (L) of the statutes are created to read:

SB935,7,14 6.87 (6d) (a) The elector's printed first name.

SB935,7,15 (b) The elector's printed last name.

SB935,7,16 (c) The elector's house or apartment number.

SB935,7,17 (d) The elector's street name.

SB935,7,18 (e) The elector's municipality.

SB935,7,19 (f) The elector's signature.

SB935,7,20 (g) The witness's printed first name.

SB935,7,21 (h) The witness's printed last name.

SB935,7,22 (i) The witness's house or apartment number.

SB935,7,23 (j) The witness's street name.

SB935,7,24 (k) The witness's municipality.

SB935,7,25 (L) The witness's signature.

SB935,4 Section 4. 6.87 (9) of the statutes is renumbered 6.87 (9) (a) and amended to read:

SB935,8,10 6.87 (9) (a) If a municipal clerk receives an absentee ballot with an improperly completed certificate or with no certificate, the clerk may return the ballot to the elector, inside the sealed envelope when an envelope is received, together with a new envelope if necessary, whenever time permits the elector to correct the defect and return the ballot within the period authorized under sub. (6), and the clerk shall post a notification of the defect on the elector's voter information page on the Internet site that is used by electors for original registration under s. 6.30 (5). The clerk may also attempt to notify the elector of the defect by other means.

SB935,5 Section 5 . 6.87 (9) (b) of the statutes is created to read:

SB935,8,15 6.87 (9) (b) No person other than the elector, or the witness with respect to the witness certificate, may correct a defect in the elector's absentee ballot certificate. Whoever violates this paragraph is guilty of a misdemeanor punishable by a fine not to exceed $500 or imprisonment not to exceed 30 days, or both.

SB935,6 Section 6 . 6.875 (4) (a) of the statutes is amended to read:

SB935,9,16 6.875 (4) (a) For the purpose of absentee voting in qualified retirement homes and residential care facilities, the municipal clerk or board of election commissioners of each municipality in which one or more qualified retirement homes or residential care facilities are located shall appoint at least 2 special voting deputies for the municipality. Except as provided in par. (am), upon application under s. 6.86 (1), (2), or (2m) by one or more qualified electors who are occupants of a home or facility, the municipal clerk or board of election commissioners of the municipality in which the home or facility is located shall dispatch 2 special voting deputies to visit the home or facility for the purpose of supervising absentee voting procedure by occupants of the home or facility. The clerk or board of election commissioners shall maintain a list, available to the public upon request, of each home or facility where special voting deputies are dispatched. The list shall include the date and time the deputies intend to visit each home or facility. The 2 deputies designated to visit each qualified retirement home and residential care facility shall be affiliated with different political parties whenever deputies representing different parties are available. No qualified retirement home or residential care facility may deny entry to a special voting deputy appointed under this paragraph except if the home or facility is closed to the public during a public health emergency and except if the home or facility is closed to the public during an incident of infectious disease, if the administrator of the home or facility has signed a verifiable statement documenting the incident and filed the statement with the municipal clerk or board of election commissioners. During a public health emergency or an incident of infectious disease, if a qualified retirement home or residential care facility is closed to the public, the home or facility shall allow a personal care voting assistant appointed under sub. (8) to supervise the absentee voting procedure used by occupants of the home or facility.

SB935,7 Section 7 . 6.875 (4) (b) of the statutes is renumbered 6.875 (4) (b) 1.

SB935,8 Section 8 . 6.875 (4) (b) 2. of the statutes is created to read:

SB935,9,24 6.875 (4) (b) 2. No individual who is employed or retained at a qualified retirement home or residential care facility in the municipality who is not a personal care voting assistant appointed under sub. (8) (a) 1. may assist an occupant of the home or facility in completing the occupant's absentee ballot, but may assist only in distributing the absentee ballots in their unopened envelopes to the occupants who requested the ballots.