ORDER OF THE WISCONSIN ELECTIONS COMMISSION
EMERGENCY RULE
The Wisconsin Elections Commission adopts the following emergency rule to revise EL 2.05 and 2.07 relating to challenge procedures for nomination papers.
The statements of scope for this rule, SS 092-23, was approved by the Office of Wisconsin Governor Tony Evers on September 28, 2023, published in Register No. 814B, on October 30, 2023, and in Register No. 815A1, on November 6, 2023, and approved by the Wisconsin Elections Commission on December 19, 2023. This emergency rule was approved by the Governor on May 23, 2024. FINDING OF EMERGENCY
The Wisconsin Elections Commission finds that an emergency exists and that the attached rule is necessary for the immediate preservation of the public peace, health, safety, or welfare. The facts constituting the emergency are as follows: February 2024 kicked off the election cycle for a major presidential election year, which is expected to produce high voter turnout and high levels of scrutiny on Wisconsin’s election procedures. Emergency rulemaking will provide the Commission an opportunity to address election administration needs ahead of the elections in 2024. There simply is not enough time to promulgate permanent rules on these topics and fully implement them before major elections in 2024 unless the Commission promulgates them as emergency rules under § 227.24(1)(a), although the Commission has directed staff to simultaneously pursue permanent rules to ensure long-term compliance. RULE ANALYSIS
Statutes Interpreted:
Statutory Authority:
Related Statutes:
Plain Language Analysis:
Sections 8.04, 8.10, 8.15, 8.20, and 8.50 of Wisconsin state statutes lay out some basic grounds for nomination paper sufficiency. Rule EL 2.05 addresses the treatment and sufficiency of nomination papers, and rule EL 2.07 lays out the process for challenges to nomination papers. However, the current rule EL 2.07 includes cross-references to other types of complaint processes that are not relevant or applicable to ballot access. The current rule also includes ambiguous language regarding the grounds for challenges to nomination papers. The proposed administrative rule would amend prior EL 2.07 to remove cross-references to other complaint procedures, and would supplement the existing procedures for challenges to nomination papers The proposed rule would also clarify ambiguous language throughout EL 2.07, and would also update the relevant provisions of EL 2.05 so that they are consistent with the new amended rule EL 2.07. Finally, the proposed rule would also incorporate existing Commission guidance and address common issues relating to the sufficiency of nomination papers. Summary of, and Comparison With, Existing or Proposed Federal Regulations:
There are no existing or proposed federal statutes or regulations that address challenge procedures for nomination papers filed in Wisconsin.
Summary of Comments Received During Preliminary Comment Period and at Public Hearing on Statement of Scope
No members of the public attended the November 9, 2023, public meeting to offer comments on the statement of scope for the proposed rule. The Commission received a variety of written comments from the public regarding the scope statements for the challenge procedures for nomination papers. All of the comments received for the nomination paper statements of scope address subjective grounds for those types of challenges that are outside the scope statements, such as character. Subjective criteria such as “character” is not within the proposed rulemaking scope of any of the scope statements. No comments offered any suggested changes. The Commission reviewed the written comments and voted to approve the scope statement as written on December 19, 2023.
Comparison with Similar Rules in Illinois, Iowa, Michigan, and Minnesota
Illinois law is very similar to the expanded procedures that would be effectuated by the proposed administrative rule. Illinois law requires candidates to file “Statements of Candidacy” and “Nominating Sheets” of signatures. Individuals may file “petition objection cases” to challenge the sufficiency of nominating sheets. Objection petitions must include an original and two copies, and are filed with the State Board of Elections, the election authority, or local election official with whom the nomination petition was filed. Once the objection is received, the filing officer transmits it no later than noon on the second business day to the chair of the proper electoral board and to the candidate who filed the nominating sheets. Within 24 hours of the receipt of the objecting petition, the appropriate electoral board notifies the objector and the candidate the day, hour and place at which the electoral board will hear the objection. The appropriate electoral board must meet not less than three nor more than five days after receipt of the objecting petition. At the first day of the meeting, the electoral board adopts rules and procedures for the introduction of evidence and the presentation of arguments and may, in its discretion, provide for the filing of briefs by the parties to the objection or by other interested persons. Within five days of the electoral board’s decision, the candidate or objector aggrieved may petition for judicial review in the appropriate circuit court. The circuit court will then hear and decide the judicial review petition within 30 days.
Iowa law is very similar to current Wisconsin practices under the existing administrative rules. Iowa law requires candidates to file an “Affidavit of Candidacy” and “Nomination Petitions” with the appropriate filing officer. Nomination papers are inspected for completeness before they are accepted for filing. Iowa law permits challenges, called “objections,” to both nomination papers and affidavits of candidacy. Objections must be made in writing, and can be brought by anyone who would have a right to vote for the candidate for office. Objections are filed with the officer with whom the nomination papers are filed. When an objection is filed, notice is mailed within 72 hours to the candidate. Objections filed with the state commissioner are decided by the State Objections Panel, comprised of the Secretary of State, State Auditor, and Attorney General. Objections filed with the county commissioner are considered by three county officers. Objections filed with the city clerk are considered by the mayor, clerk, and one city council member. Objections relating to incorrect or incomplete information shall be sustained.
Michigan law has a few different procedures for nomination paper review, but their challenge process is substantively similar to Wisconsin’s current practice. Michigan law requires candidates to file “Nomination Petitions” and an “Affidavit of Candidacy.” Michigan law permits candidates for its Legislature to pay a filing fee in lieu of filing nomination papers; those candidates cannot be challenged for insufficient signatures. Michigan utilizes a petition sampling procedure to evaluate the validity of ballot signatures. Board of Elections staff utilize a single-step random sampling process using specially designed software. Once generated, the sample list is distributed for challenges. BOE staff review the sample signatures twice for sufficiency, and again if they are challenged. Challenges may be filed up to seven days following the filing deadline. The challenge must specify each signature being challenged and why. To challenge anything other than specific signatures, a full written description of what is being challenged must be submitted. Challenges are filed with the appropriate filing officer. The Board or county clerk is responsible for resolving any challenges and certifying qualified candidates the ballot.
Minnesota ballot access law and procedure are very different from Wisconsin for both the current rules and proposed rules. Minnesota requires candidates to submit an “Affidavit of Candidacy,” and most major party candidates choose to pay a filing fee to the appropriate filing officer in lieu filing “Nomination Petitions.” For the minority of candidates who do file nomination papers, Minnesota filing officers examine nomination petitions for sufficiency and substantial compliance. There are different verifying procedures for major party and minor party candidates. Instead of an administrative challenge or process, Minnesota allows individuals to file a petition for the correction of errors, omissions, or wrongful acts for ballot access. The petition is filed in court, which then immediately sets a hearing on the matter. The court then issues its findings and a final order.
Summary of Factual Data and Analytical Methodologies
Commission staff did not perform empirical analysis for this rule, but the rule was proposed as a result of feedback provided by candidates, their representatives, and the public. Commission staff informally collected anecdotal evidence, which highlighted a concern that current ballot access procedures were vague and insufficient to address procedural issues in recent years.
Analysis and Supporting Documents used to Determine Effect on Small Business
There is no anticipated effect on small business. A full economic impact analysis is not required for an emergency rule pursuant to Wis. Stat. § 227.24(1)(e)2., but staff did prepare the required fiscal estimate. No specific analysis was performed for the fiscal estimate, nor were any supporting documents generated, because there is no anticipated effect on any fiscal liabilities and revenue, and no anticipated costs to be incurred by the private sector. Agency Contact Person:
Angela O’Brien Sharpe, Staff Attorney
Wisconsin Elections Commission
201 West Washington Avenue
P.O. Box 7984
Madison, WI 53707-7984
Telephone: 608-264-6764
RULE TEXT
EL 2.05 Treatment and Sufficiency of Nomination Papers
