AB981: Bill Text

LRB-5221/1

JK:amn

2021 - 2022 LEGISLATURE

2021 Assembly BILL 981

February 15, 2022 - Introduced by Representatives Ramthun and Thiesfeldt. Referred to Committee on Campaigns and Elections.

AB981,3,17 An Act to repeal 5.025, 5.05 (1e), 5.05 (2m) (c) 5. a. to c., 5.05 (2m) (d) 1., 5.93, 7.41 (5), 12.01 (2), 15.06 (1) (d), 15.06 (2) (b) 1., 15.06 (3) (a) 5., 15.61, 19.42 (10) (a), 19.42 (13) (p), 20.510 (intro.) and (1) (title) and 230.08 (2) (eL); to renumber 15.06 (2) (b) 2., 20.510 (1) (bm), 20.510 (1) (br), 20.510 (1) (c), 20.510 (1) (d), 20.510 (1) (e), 20.510 (1) (jn), 20.510 (1) (m), 20.510 (1) (t) and 20.510 (1) (x); to renumber and amend 5.05 (2m) (c) 5. (intro.), 5.05 (2m) (d) 2., 20.510 (1) (a), 20.510 (1) (be), 20.510 (1) (g), 20.510 (1) (h) and 20.510 (1) (jm); to consolidate, renumber and amend 12.01 (intro.) and (1); and to amend 5.01 (4) (a), 5.05 (title), 5.05 (1) (intro.), 5.05 (1) (b), 5.05 (1) (c), 5.05 (2m) (a), 5.05 (2m) (c) 2., 5.05 (2m) (c) 4., 5.05 (2m) (c) 6., 5.05 (2m) (c) 7., 5.05 (2m) (c) 9., 5.05 (2m) (c) 10., 5.05 (2m) (c) 11., 5.05 (2m) (c) 12., 5.05 (2m) (c) 13., 5.05 (2m) (c) 14., 5.05 (2m) (c) 15., 5.05 (2m) (c) 16., 5.05 (2m) (c) 17., 5.05 (2m) (c) 18., 5.05 (2m) (e), 5.05 (2m) (f) (intro.), 5.05 (2m) (f) 1., 5.05 (2m) (f) 2., 5.05 (2m) (h), 5.05 (2m) (i), 5.05 (2m) (k), 5.05 (2q), 5.05 (2w), 5.05 (3d), 5.05 (3g), 5.05 (4), 5.05 (5e), 5.05 (5f), 5.05 (5s) (intro.), (a), (am), (b), (bm), (c), (d), (e) (intro.), 1., 2. and (f), 5.05 (5t), 5.05 (6a), 5.05 (7), 5.05 (9), 5.05 (10), 5.05 (11), 5.05 (12), 5.05 (13) (a), 5.05 (13) (b), 5.05 (13) (c), 5.05 (13) (d) (intro.), 5.05 (14), 5.05 (15), 5.05 (16), 5.05 (17), 5.05 (18), 5.055, 5.056, 5.06 (1), 5.06 (2), 5.06 (4), 5.06 (5), 5.06 (6), 5.06 (7), 5.06 (8), 5.06 (9), 5.061 (1), 5.061 (2), 5.061 (3), 5.061 (4), 5.25 (4), 5.35 (6) (a) 2m., 5.35 (6) (a) 4a., 5.35 (6) (a) 4b., 5.35 (6) (a) 5., 5.35 (6) (b), 5.40 (5m), 5.40 (7), 5.51 (6), 5.51 (8), 5.58 (1b) (bm), 5.58 (1b) (cm), 5.58 (2), 5.58 (2m), 5.60 (1) (b), 5.60 (3) (ag), 5.60 (5) (ar), 5.60 (6) (a), 5.60 (8) (am), 5.62 (1) (a), 5.62 (1) (b) 1., 5.62 (2) (a), 5.62 (3), 5.62 (4) (ar), 5.62 (4) (b), 5.64 (1) (ag), 5.64 (1) (b), 5.64 (1) (es), 5.64 (2), 5.655 (3), 5.72, 5.83, 5.87 (2), 5.905 (2), 5.905 (3), 5.905 (4), 5.91 (intro.), 5.95, 6.06, 6.22 (4) (d), 6.22 (6), 6.24 (3), 6.24 (4) (d), 6.24 (5), 6.24 (6), 6.275 (1) (intro.), 6.275 (1) (f), 6.275 (2), 6.276 (2), 6.276 (3), 6.29 (2) (am), 6.30 (4), 6.30 (5), 6.32, 6.33 (1), 6.33 (5) (a), 6.33 (5) (b), 6.34 (2m), 6.34 (4), 6.35 (2), 6.36 (1) (a) (intro.), 6.36 (1) (a) 4., 6.36 (1) (a) 9., 6.36 (1) (am), 6.36 (1) (b) 1. a., 6.36 (1) (b) 1. b., 6.36 (1) (bm), 6.36 (1) (bn), 6.36 (1) (d), 6.36 (1) (e), 6.36 (1) (f), 6.36 (2) (a), 6.36 (6), 6.47 (1) (ag), 6.47 (1) (am) 2., 6.47 (1) (dm), 6.47 (2), 6.47 (3), 6.50 (1) (intro), 6.50 (2), 6.50 (2g), 6.50 (2r) (intro.), 6.50 (2r) (b), 6.50 (2r) (h), 6.50 (7), 6.55 (2) (a) (intro.), 6.55 (2) (cs), 6.55 (3) (b), 6.56 (3), 6.56 (3m), 6.56 (4), 6.56 (7), 6.57, 6.79 (1m), 6.86 (2) (a), 6.86 (2m) (a), 6.86 (3) (a) 1., 6.869, 6.87 (3) (d), 6.875 (5), 6.92 (1), 6.925, 6.95, 6.96, 6.97 (1), 7.03 (1) (a), 7.03 (1) (b), 7.03 (2), 7.08 (intro.), 7.08 (1), 7.08 (2) (a), 7.08 (2) (d), 7.08 (3) (intro.), 7.08 (3) (a), 7.08 (4), 7.08 (6), 7.10 (1) (a), 7.10 (2), 7.10 (3) (a), 7.10 (4), 7.10 (7), 7.10 (8), 7.10 (9), 7.10 (10), 7.15 (1) (e), 7.15 (1) (g), 7.15 (1m), 7.15 (8), 7.15 (9), 7.15 (10), 7.15 (13), 7.30 (2) (c), 7.30 (4) (e), 7.30 (6) (b), 7.31, 7.315 (1) (a), 7.315 (2), 7.315 (3), 7.38 (5), 7.52 (1) (a), 7.60 (4) (a), 7.60 (5), 7.70 (1), 7.70 (3) (a), (b), (c), (d), (e), (g), (h) and (i), 7.70 (5), 8.07, 8.10 (6) (a), 8.12 (1), 8.12 (2), 8.12 (3), 8.15 (8) (a), 8.16 (2) (b), 8.16 (7), 8.17 (9) (a), 8.17 (12), 8.18 (2), 8.185 (1), 8.185 (2), 8.185 (3), 8.19 (1), 8.19 (3), 8.20 (7), 8.30 (2m), 8.40 (3), 8.50 (1) (a), 8.50 (1) (b), 8.50 (1) (d), 8.50 (3) (e), 9.01 (1) (a) 1., 9.01 (1) (a) 4., 9.01 (1) (ag) 2., 9.01 (1) (ag) 4., 9.01 (1) (ar) 2., 9.01 (1) (ar) 3., 9.01 (5) (a), 9.01 (5) (bm), 9.01 (5) (c), 9.01 (6) (a), 9.01 (7) (a), 9.01 (8) (a), 9.01 (8) (c), 9.01 (8) (d), 9.01 (10), 10.01 (1), 10.01 (2) (intro), 10.02 (1), 10.02 (2) (c), 10.02 (3) (intro.), 10.06 (1), 10.06 (2) (a), 10.06 (2) (b), 10.06 (2) (e), 10.06 (2) (h), 10.06 (2) (k), 12.13 (5) (a), 12.13 (5) (b) (intro.), 12.13 (5) (b) 3., 13.123 (3) (b) 2., 13.23, 14.38 (10m), 15.01 (2), 15.06 (5), 15.06 (6), 15.06 (10), 16.79 (2), 16.96 (3) (b), 17.17 (1), 17.17 (4), 19.43 (4), 19.85 (1) (h), 19.851 (title), 19.851 (1), 20.505 (1) (d), 20.575 (1) (g), 20.575 (1) (ka), 38.16 (3) (br) 3., 49.165 (4) (a), 59.605 (3) (a) 3., 67.05 (3) (b), 67.05 (6), 85.61 (1), 117.20 (2), 117.27 (2) (b) (intro.), 121.91 (3) (c), 165.93 (4) (a), 198.08 (10), 200.09 (11) (am) 2., 200.09 (11) (am) 3., 227.03 (6), 227.52 (6), 301.03 (20m), 342.06 (1) (eg), 343.027, 343.11 (2m), 343.14 (2j), 343.50 (8) (c) 3., 756.04 (2) (c) 1., 778.135, 978.05 (1) and 978.05 (2) of the statutes; relating to: dissolving the Elections Commission and requiring the secretary of state to administer elections.

Analysis by the Legislative Reference Bureau

This bill dissolves the Elections Commission and requires the secretary of state to assume the duties of the commission, effective June 30, 2023. Under the bill, the administrator of the commission must work with the secretary of state to ensure a smooth transition from the commission to the office of the secretary of state and to formulate an implementation plan. Under the bill, all assets, liabilities, and tangible personal property of the commission are transferred to secretary of state. In addition, all incumbent employees holding positions at the commission on the bill's effective date, other than the administrator, are transferred to the office of the secretary of state. The bill also requires the secretary of state, upon assuming the duties of the Elections Commission, to implement the recommendations contained in the Legislative Audit Bureau's Report 21-19 regarding the past performance of the commission related to elections held in 2020. The secretary must report the progress in implementing those recommendations to the legislature no later than December 31, 2023.

For further information see the state 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:

AB981,1 Section 1. 5.01 (4) (a) of the statutes is amended to read:

AB981,4,8 5.01 (4) (a) 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 secretary of state or the chairperson's secretary's designee.

AB981,2 Section 2. 5.025 of the statutes is repealed.

AB981,3 Section 3. 5.05 (title) of the statutes is amended to read:

AB981,4,11 5.05 (title) Elections commission Secretary of state; powers and duties.

AB981,4 Section 4. 5.05 (1) (intro.) of the statutes is amended to read:

AB981,4,17 5.05 (1) General authority. (intro.) The elections commission secretary of state shall have the responsibility for the administration of chs. 5 to 10 and 12 and other laws relating to elections and election campaigns, other than laws relating to campaign financing. Pursuant to such responsibility, the commission secretary of state and the office of the secretary of state may:

AB981,5 Section 5. 5.05 (1) (b) of the statutes is amended to read:

AB981,5,8 5.05 (1) (b) In the discharge of its the duties of the secretary of state and after providing notice to any party who is the subject of an investigation, subpoena and bring before it the secretary any person and require the production of any papers, books, or other records relevant to an investigation. Notwithstanding s. 885.01 (4), the issuance of a subpoena requires action by the commission at a meeting of the commission. In the discharge of its his or her duties, the commission secretary may cause the deposition of witnesses to be taken in the manner prescribed for taking depositions in civil actions in circuit court.

AB981,6 Section 6. 5.05 (1) (c) of the statutes is amended to read:

AB981,6,10 5.05 (1) (c) Bring civil actions to require a forfeiture for any violation of chs. 5 to 10 or 12. The commission secretary of state may compromise and settle any civil action or potential action brought or authorized to be brought by it the secretary which, in the his or her opinion of the commission, constitutes a minor violation, a violation caused by excusable neglect, or which for other good cause shown, should not in the public interest be prosecuted under such chapter. Notwithstanding s. 778.06, a civil action or proposed civil action authorized under this paragraph may be settled for such sum as may be agreed between the parties. Any settlement made by the commission secretary shall be in such amount as to deprive the alleged violator of any benefit of his or her wrongdoing and may contain a penal component to serve as a deterrent to future violations. In settling civil actions or proposed civil actions, the commission secretary shall treat comparable situations in a comparable manner and shall assure that any settlement bears a reasonable relationship to the severity of the offense or alleged offense. Except as otherwise provided in sub. (2m) (c) 15. and 16. and ss. 5.08 and 5.081, forfeiture actions brought by the commission secretary shall be brought in the circuit court for the county where the defendant resides, or if the defendant is a nonresident of this state, in circuit court for the county wherein the violation is alleged to occur. For purposes of this paragraph, a person other than an individual resides within a county if the person's principal place of operation is located within that county. Whenever the commission secretary enters into a settlement agreement with an individual who is accused of a civil violation of chs. 5 to 10 or 12 or who is investigated by the commission office of the secretary of state for a possible civil violation of one of those provisions, the commission secretary shall reduce the agreement to writing, together with a statement of the commission's secretary's findings and reasons for entering into the agreement and shall retain the agreement and statement in its the office of the secretary of state for inspection.

AB981,7 Section 7. 5.05 (1e) of the statutes is repealed.

AB981,8 Section 8. 5.05 (2m) (a) of the statutes is amended to read:

AB981,7,2 5.05 (2m) (a) The commission office of the secretary of state shall investigate violations of laws administered by the commission secretary and may prosecute alleged civil violations of those laws, directly or through its agents under this subsection, pursuant to all statutes granting or assigning that authority or responsibility to the commission secretary. Prosecution of alleged criminal violations investigated by the commission office of the secretary of state may be brought only as provided in par. (c) 11., 14., 15., and 16. and s. 978.05 (1). For purposes of this subsection, the commission office of the secretary of state may only initiate an investigation of an alleged violation of chs. 5 to 10 and 12, other than an offense described under par. (c) 12., based on a sworn complaint filed with the commission secretary of state, as provided under par. (c). Neither the commission secretary of state nor any member or employee of the commission, including the commission administrator, office of the secretary of state may file a sworn complaint for purposes of this subsection.

AB981,9 Section 9. 5.05 (2m) (c) 2. of the statutes is amended to read:

AB981,7,14 5.05 (2m) (c) 2. a. Any person may file a complaint with the commission secretary of state alleging a violation of chs. 5 to 10 or 12. No later than 5 days after receiving a complaint, the commission secretary shall notify each person who or which the complaint alleges committed such a violation. Before voting on whether to take any action regarding the complaint, other than to dismiss, the commission The secretary shall give each person receiving a notice under this subd. 2. a. an opportunity to demonstrate to the commission secretary, in writing and within 15 days after receiving the notice, that the commission secretary should take no action against the person on the basis of the complaint. The commission office of the secretary of state may not conduct any investigation or take any other action under this subsection solely on the basis of a complaint by an unidentified complainant.

AB981,7,18 am. If the commission office of the secretary of state finds, by a preponderance of the evidence, that a complaint is frivolous, the commission secretary of state may order the complainant to forfeit not more than the greater of $500 or the expenses incurred by the commission office in investigating the complaint.

AB981,10 Section 10. 5.05 (2m) (c) 4. of the statutes is amended to read:

AB981,8,20 5.05 (2m) (c) 4. If the commission office of the secretary of state reviews a complaint and fails to find that there is a reasonable suspicion that a violation under subd. 2. has occurred or is occurring, the commission secretary of state shall dismiss the complaint. If the commission office believes that there is reasonable suspicion that a violation under subd. 2. has occurred or is occurring, the commission secretary may by resolution authorize the commencement of an investigation. The resolution shall specifically set forth any matter that is authorized to be investigated. To assist in the investigation, the commission secretary may elect to retain a special investigator. If the commission elects to retain a special investigator, the administrator of the commission shall submit to the commission the names of 3 qualified individuals to serve as a special investigator. The commission may retain one or more of the individuals. If the commission secretary retains a special investigator to investigate a complaint against a person who is a resident of this state, the commission secretary shall provide to the district attorney for the county in which the person resides a copy of the complaint and shall notify the district attorney that it he or she has retained a special investigator to investigate the complaint. For purposes of this subdivision, a person other than an individual resides within a county if the person's principal place of operation is located within that county. The commission secretary shall enter into a written contract with any individual who is retained as a special investigator setting forth the terms of the engagement. A special investigator who is retained by the commission secretary may request the commission secretary to issue a subpoena to a specific person or to authorize the special investigator to request the circuit court of the county in which the specific person resides to issue a search warrant. The commission may grant the request by approving a motion to that effect at a meeting of the commission if the commission finds that such action is legally appropriate.

AB981,11 Section 11. 5.05 (2m) (c) 5. (intro.) of the statutes is renumbered 5.05 (2m) (c) 5. and amended to read:

AB981,9,18 5.05 (2m) (c) 5. Each special investigator who is retained by the commission shall make periodic reports to the commission, as directed by the commission, but in no case may the interval for reporting exceed 30 days. If the commission authorizes the commission administrator to investigate any matter without retaining a special investigator, the administrator shall make periodic reports to the commission, as directed by the commission, but in no case may the reporting interval exceed 30 days. During the pendency of any investigation, the commission office of the secretary of state shall meet for the purpose of reviewing review the progress of the investigation at least once every 90 days. The special investigator or the administrator shall report in person to the commission office and the secretary at that meeting concerning the progress of the investigation. If, after receiving a report, the commission does not vote to continue an investigation for an additional period not exceeding 90 days, the investigation is terminated at the end of the reporting interval. The commission office of the secretary of state shall not expend more than $25,000 to finance the cost of an investigation before receiving a report on the progress of the investigation and a recommendation to commit additional resources. The commission secretary of state may vote to terminate an investigation at any time. If an investigation is terminated, any complaint from which the investigation arose is deemed to be dismissed by the commission. Unless an investigation is terminated by the commission, at the conclusion of each investigation, the administrator shall present to the commission one of the following: secretary.

AB981,12 Section 12. 5.05 (2m) (c) 5. a. to c. of the statutes are repealed.

AB981,13 Section 13. 5.05 (2m) (c) 6. of the statutes is amended to read:

AB981,9,25 5.05 (2m) (c) 6. a. If the commission office of the secretary of state finds that there is probable cause to believe that a violation under subd. 2. has occurred or is occurring, the commission secretary of state may authorize the commission administrator to file a civil complaint against the alleged violator. In such case, the administrator secretary may request the assistance of special counsel to prosecute any action brought by the commission. If the administrator requests the assistance of special counsel with respect to any matter, the administrator shall submit to the commission the names of 3 qualified individuals to serve as special counsel. The commission may retain one of the individuals to act as special counsel office. The staff of the commission office of the secretary of state shall provide assistance to the special counsel as may be required by the counsel to carry out his or her responsibilities.

AB981,10,14 b. The commission secretary of state shall enter into a written contract with any individual who is retained as special counsel setting forth the terms of the engagement. The contract shall set forth the compensation to be paid such counsel by the state. The contract shall be executed on behalf of the state by the commission and the commission shall file the contract kept in the office of the secretary of state. The compensation shall be charged to the appropriation under s. 20.510 (1) 20.575 (2) (br).

AB981,14 Section 14. 5.05 (2m) (c) 7. of the statutes is amended to read:

AB981,10,18 5.05 (2m) (c) 7. No individual who is appointed or retained by the commission secretary of state to serve as special counsel or as a special investigator is subject to approval under s. 20.930.

AB981,15 Section 15. 5.05 (2m) (c) 9. of the statutes is amended to read:

AB981,11,3 5.05 (2m) (c) 9. At the conclusion of its investigation, the commission office of the secretary of state shall, in preliminary written findings of fact and conclusions based thereon, make a determination of whether or not probable cause exists to believe that a violation under subd. 2. has occurred or is occurring. If the commission office determines that no probable cause exists, it the secretary of state shall dismiss the complaint. Whenever the commission secretary dismisses a complaint or a complaint is deemed to be dismissed under subd. 5., the commission office shall immediately send written notice of the dismissal to the accused and to the party who made the complaint.

AB981,16 Section 16. 5.05 (2m) (c) 10. of the statutes is amended to read:

AB981,11,6 5.05 (2m) (c) 10. The commission office of the secretary of state shall inform the accused or his or her counsel of exculpatory evidence in its possession.

AB981,17 Section 17. 5.05 (2m) (c) 11. of the statutes is amended to read:

AB981,11,16 5.05 (2m) (c) 11. If the commission office of the secretary of state finds that there is probable cause to believe that a violation under subd. 2. has occurred or is occurring, the commission secretary of state may, in lieu of civil prosecution of any matter by the commission office, refer the matter to the district attorney for the county in which the alleged violator resides, or if the alleged violator is a nonresident, to the district attorney for the county where the matter arises, or if par. (i) applies, to the attorney general or a special prosecutor. For purposes of this subdivision, a person other than a natural person resides within a county if the person's principal place of operation is located within that county.

AB981,18 Section 18. 5.05 (2m) (c) 12. of the statutes is amended to read:

AB981,11,24 5.05 (2m) (c) 12. The commission office of the secretary of state shall, by rule, prescribe categories of civil offenses which the commission secretary of state will agree to compromise and settle without a formal investigation upon payment of specified amounts by the alleged offender. The commission may authorize the commission administrator to compromise and settle such alleged offenses in the name of the commission if the alleged offenses by an offender, in the aggregate, do not involve payment of more than $2,500.

AB981,19 Section 19. 5.05 (2m) (c) 13. of the statutes is amended to read:

AB981,12,10 5.05 (2m) (c) 13. If a special investigator or the commission administrator, in the course of an investigation authorized by the commission secretary of state, discovers evidence that a violation under subd. 2. that was not within the scope of the authorized investigation has occurred or is occurring, the special investigator or the administrator may present that evidence to the commission secretary. If the commission secretary finds that there is a reasonable suspicion that a violation under subd. 2. that is not within the scope of the authorized investigation has occurred or is occurring, the commission secretary may authorize the special investigator or the administrator to investigate the alleged violation or may elect to authorize a separate investigation of the alleged violation as provided in subd. 4.

AB981,20 Section 20. 5.05 (2m) (c) 14. of the statutes is amended to read:

AB981,12,21 5.05 (2m) (c) 14. If a special investigator or the commission administrator, in the course of an investigation authorized by the commission secretary of state, discovers evidence of a potential violation of a law that is not administered by the commission office of the secretary of state arising from or in relation to the official functions of the subject of the investigation or any matter that involves elections, the special investigator or the administrator may present that evidence to the commission secretary. The commission secretary may thereupon refer the matter to the appropriate district attorney specified in subd. 11. or may refer the matter to the attorney general. The attorney general may then commence a civil or criminal prosecution relating to the matter.