Chapter 5

5.02(8) (8) “Justice” means a justice of the supreme court.

5.02(8m) (8m) “Labor organization” means any employee organization in which employees participate and which exists primarily for the purpose of engaging in collective bargaining with any employer concerning grievances, labor disputes, wages, hours or conditions of employment, or the promotion and advancement of the professional or occupational standards and the welfare of its members and families and any organization established for the same purposes composed of individuals or affiliates of any such employee organization.

5.02(9) (9) “Local office” means any elective office other than a state or national office.

5.02(10) (10) “Municipal clerk” means the city clerk, town clerk, village clerk and the executive director of the city election commission and their authorized representatives. Where applicable, “municipal clerk” also includes the clerk of a school district.

5.02(11) (11) “Municipality” means city, town or village.

5.02(12) (12) “National office” means the offices of president and vice president of the United States, U.S. senator and representative in congress.

5.02(12m) (12m) “Nickname” means a familiar or shortened form of a proper name by which an individual is commonly known.

5.02(12n) (12n) “Overseas elector” means a U.S. citizen who is residing outside of the United States, who is not disqualified from voting under s. 6.03, who has attained or will attain the age of 18 by the date of an election at which the citizen proposes to vote, who was last domiciled in this state or whose parent was last domiciled in this state immediately prior to the parent’s departure from the United States, and who is not registered to vote or voting in any other state, territory, or possession.

5.02(12s) (12s) “Partisan primary” means the primary held the 2nd Tuesday in August to nominate candidates to be voted for at the general election.

5.02(13) (13) “Political party” has the meaning given in s. 11.0101 (26).

5.02(14) (14) “Poll list” means the list which is compiled by election officials on election day showing the names and addresses of electors who actually cast votes in an election.

5.02(15) (15) “Polling place” means the actual location wherein the elector’s vote is cast.

5.02(16) (16) “Primary” means a primary election.

5.02(16c) (16c) “Proof of identification” means identification that contains the name of the individual to whom the document was issued, which name conforms to the individual’s voter registration form, if the individual is required to register to vote, and that contains a photograph of the individual, except as authorized in s. 343.14 (3m) or 343.50 (4g).

5.02(16g) (16g) “Qualified circulator” means a qualified elector of this state or any U.S. citizen age 18 or older who, if he or she were a resident of this state, would not be disqualified from voting under s. 6.03.

5.02(16m) (16m) “Recognized political party” means a political party which qualifies for a separate ballot or column under s. 5.62 (1) (b) or (2).

5.02(16s) (16s) “Referendum” means an election at which an advisory, validating or ratifying question is submitted to the electorate.

5.02(17) (17) “Registration list” means the list of electors who are properly registered to vote.

5.02(19) (19) “Special election” means any election, other than those described in subs. (5), (12s), (21), and (22), to fill vacancies or to conduct a referendum.

5.02(20) (20) “Special primary” means the primary held 4 weeks before the special election except when the special election is held on the same day as the general election the special primary shall be held on the same day as the general primary or if the special election is held concurrently with the spring election, the primary shall be held concurrently with the spring primary.

5.02(20g) (20g) “Special purpose district” means any local governmental unit other than a county or municipality.

5.02(20r) (20r) “Special referendum” means any referendum held at a special election which is not held concurrently with the elections described in sub. (5), (12s), (21), or (22).

5.02(21) (21) “Spring election” means the election held on the first Tuesday in April to elect judicial, educational and municipal officers, nonpartisan county officers and sewerage commissioners and to express preferences for the person to be the presidential candidate for each party in a year in which electors for president and vice president are to be elected.

5.02(22) (22) “Spring primary” means the nonpartisan primary held on the 3rd Tuesday in February to nominate nonpartisan candidates to be voted for at the spring election.

5.02(23) (23) “State office” means the offices of governor, lieutenant governor, secretary of state, state treasurer, attorney general, state superintendent, justice of the supreme court, court of appeals judge, circuit court judge, state senator, state representative to the assembly and district attorney.

5.02(24) (24) “State superintendent” means the state superintendent of public instruction.

5.02(24g) (24g) “Voting device” means an apparatus other than a voting machine which the elector uses to record his or her votes on a ballot.

5.02(24r) (24r) “Voting machine” means a machine which serves in lieu of a voting booth and which mechanically or electronically records the votes cast by electors, who depress levers or buttons located next to the choices listed on a ballot to cast their votes.

5.02(24w) (24w) “Voting system” means:

5.02(24w)(a) (a) The total combination of mechanical, electromechanical, or electronic equipment, including the software, hardware, and documentation required to program, control, and support the equipment, that is used to define ballots, to cast and count votes, to report or display election results, and to maintain and produce any audit trail information.

5.02(24w)(b) (b) The practices and associated documentation for any of the following purposes:

5.02(24w)(b)1. 1. To identify equipment components and versions of such components.

5.02(24w)(b)2. 2. To test the equipment during its development and maintenance.

5.02(24w)(b)3. 3. To maintain records of equipment errors and defects.

5.02(24w)(b)4. 4. To determine specific equipment changes to be made after the initial qualification of the equipment.

5.02(24w)(b)5. 5. To make available any materials to an elector.

5.02(25) (25) “Ward” means a town, village or city subdivision created for the convenience of the electors therein and to facilitate the division of such municipalities into election districts of substantially equal population numbers along common boundaries observing the community of interest of existing neighborhoods and other settlements.

5.02 History History: 1971 c. 211; 1971 c. 304 ss. 2, 29 (2); 1973 c. 280, 334; 1975 c. 93; 1977 c. 107, 187, 394; 1977 c. 427 ss. 3 to 14; 1977 c. 449; 1979 c. 32, 89, 221; 1979 c. 260 ss. 1m, 73 to 75; 1979 c. 311, 328; 1981 c. 4, 391; 1983 a. 484 ss. 5, 5c, 124m, 128; 1985 a. 303; 1985 a. 304 ss. 1m, 2, 155; 1987 a. 391 ss. 1 to 1r, 66w; 1989 a. 31; 1991 a. 5; 1993 a. 140, 184; 1995 a. 16 s. 2; 1995 a. 27 s. 9145 (1); 1995 a. 219; 1997 a. 35; 2001 a. 16, 109; 2003 a. 24, 265; 2005 a. 177, 451; 2007 a. 1; 2009 a. 397; 2011 a. 23, 32, 45, 75; 2013 a. 165; 2015 a. 117, 118, 261; 2017 a. 369; 2023 a. 126; s. 35.17 correction in (4v) (a).

5.02 Annotation Municipal clerks are the officials primarily responsible for election administration in Wisconsin. A “board of election commissioners” is established in Wisconsin’s high population cities and counties to carry out the duties otherwise accomplished by municipal and county clerks everywhere else. The phrase “municipal clerk or board of election commissioners” appears in tandem all over the election statutes because that describes the duties of local election officials. State ex rel. Zignego v. Wisconsin Elections Commission, 2021 WI 32, 396 Wis. 2d 391, 957 N.W.2d 208, 19-2397.

5.02 Annotation Photographic identification is necessary for in-person voting. Students may use college-issued credentials under sub. (6m) (f), but only before an ID’s expiration date. There’s nothing wrong with a requirement that IDs be current. Luft v. Evers, 963 F.3d 665 (2020).

5.02 Annotation Treating students differently from other potential voters without a rational basis violates the equal protection clause. Under sub. (6m) (f), a student identification card, alone among the sorts of photo ID that Wisconsin accepts, is not sufficient for voting unless the student also shows proof of current enrollment. No other category of acceptable identification depends on ongoing affiliation of any sort. That differential treatment violates the equal protection clause of the 14th amendment to the U.S. Constitution. Luft v. Evers, 963 F.3d 665 (2020).

5.02 Annotation The requirements in sub. (6m) (f) that a student identification card must display: 1) an issuance date; 2) an expiration date; 3) an expiration date not more than two years after the issuance date; and 4) a signature, are rationally related to a legitimate governmental interest and do not violate the equal protection clause. Common Cause v. Thomsen, 574 F. Supp. 3d 634 (2021).

5.025 5.025 Elections commission; definition. In chs. 5 to 10 and 12, “commission” means the elections commission.

5.025 History History: 2015 a. 118 s. 2; Stats. 2015 s. 5.025.

5.05 5.05 Elections commission; powers and duties.

5.05(1) (1) General authority. The elections commission 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 may:

5.05(1)(b) (b) In the discharge of its duties and after providing notice to any party who is the subject of an investigation, subpoena and bring before it 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 duties, the commission may cause the deposition of witnesses to be taken in the manner prescribed for taking depositions in civil actions in circuit court.

5.05(1)(c) (c) Bring civil actions to require a forfeiture for any violation of chs. 5 to 10 or 12. The commission may compromise and settle any civil action or potential action brought or authorized to be brought by it which, in the 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 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 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 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 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 for a possible civil violation of one of those provisions, the commission shall reduce the agreement to writing, together with a statement of the commission’s findings and reasons for entering into the agreement and shall retain the agreement and statement in its office for inspection.

5.05(1)(d) (d) Sue for injunctive relief, a writ of mandamus or prohibition, or other such legal or equitable relief as may be appropriate to enforce any law regulating the conduct of elections or election campaigns, other than laws regulating campaign financing, or ensure its proper administration. No bond is required in such actions. Actions shall be brought in circuit court for the county where a violation occurs or may occur.

5.05(1)(e) (e) Issue an order under s. 5.06, exempt a polling place from accessibility requirements under s. 5.25 (4) (a), exempt a municipality from the requirement to use voting machines or an electronic voting system under s. 5.40 (5m), approve an electronic data recording system for maintaining poll lists under s. 6.79, or authorize nonappointment of an individual who is nominated to serve as an election official under s. 7.30 (4) (e).

5.05(1)(f) (f) Promulgate rules under ch. 227 applicable to all jurisdictions for the purpose of interpreting or implementing the laws regulating the conduct of elections or election campaigns, other than laws regulating campaign financing, or ensuring their proper administration.

5.05(1e) (1e) Actions by the commission. Any action by the commission, except an action relating to procedure of the commission, requires the affirmative vote of at least two-thirds of the members.

5.05(2m) (2m) Enforcement.

5.05(2m)(a) (a) The commission shall investigate violations of laws administered by the commission 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. Prosecution of alleged criminal violations investigated by the commission 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 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, as provided under par. (c). Neither the commission nor any member or employee of the commission, including the commission administrator, may file a sworn complaint for purposes of this subsection.

5.05(2m)(c) (c)

5.05(2m)(c)2. 2.

5.05(2m)(c)2.a. a. Any person may file a complaint with the commission alleging a violation of chs. 5 to 10 or 12. No later than 5 days after receiving a complaint, the commission 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 shall give each person receiving a notice under this subd. 2. a. an opportunity to demonstrate to the commission, in writing and within 15 days after receiving the notice, that the commission should take no action against the person on the basis of the complaint. The commission may not conduct any investigation or take any other action under this subsection solely on the basis of a complaint by an unidentified complainant.

5.05(2m)(c)2.am. am. If the commission finds, by a preponderance of the evidence, that a complaint is frivolous, the commission may order the complainant to forfeit not more than the greater of $500 or the expenses incurred by the commission in investigating the complaint.

5.05(2m)(c)4. 4. If the commission 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 shall dismiss the complaint. If the commission believes that there is reasonable suspicion that a violation under subd. 2. has occurred or is occurring, the commission 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 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 retains a special investigator to investigate a complaint against a person who is a resident of this state, the commission 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 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 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 may request the commission 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.

5.05(2m)(c)5. 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 shall meet for the purpose of reviewing the progress of the investigation at least once every 90 days. The special investigator or the administrator shall report in person to the commission 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 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 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:

5.05(2m)(c)5.a. a. A recommendation to make a finding that probable cause exists to believe that one or more violations under subd. 2. have occurred or are occurring, together with a recommended course of action.

5.05(2m)(c)5.b. b. A recommendation for further investigation of the matter together with facts supporting that course of action.

5.05(2m)(c)5.c. c. A recommendation to terminate the investigation due to lack of sufficient evidence to indicate that a violation under subd. 2 has occurred or is occurring.

5.05(2m)(c)6. 6.

5.05(2m)(c)6.a. a. If the commission finds that there is probable cause to believe that a violation under subd. 2. has occurred or is occurring, the commission may authorize the commission administrator to file a civil complaint against the alleged violator. In such case, the administrator 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. The staff of the commission shall provide assistance to the special counsel as may be required by the counsel to carry out his or her responsibilities.

5.05(2m)(c)6.b. b. The commission 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 in the office of the secretary of state. The compensation shall be charged to the appropriation under s. 20.510 (1) (br).

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

5.05(2m)(c)9. 9. At the conclusion of its investigation, the commission 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 determines that no probable cause exists, it shall dismiss the complaint. Whenever the commission dismisses a complaint or a complaint is deemed to be dismissed under subd. 5., the commission shall immediately send written notice of the dismissal to the accused and to the party who made the complaint.

5.05(2m)(c)10. 10. The commission shall inform the accused or his or her counsel of exculpatory evidence in its possession.

5.05(2m)(c)11. 11. If the commission finds that there is probable cause to believe that a violation under subd. 2. has occurred or is occurring, the commission may, in lieu of civil prosecution of any matter by the commission, 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.

5.05(2m)(c)12. 12. The commission shall, by rule, prescribe categories of civil offenses which the commission 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.

5.05(2m)(c)13. 13. If a special investigator or the commission administrator, in the course of an investigation authorized by the commission, 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. If the commission 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 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.

5.05(2m)(c)14. 14. If a special investigator or the commission administrator, in the course of an investigation authorized by the commission, discovers evidence of a potential violation of a law that is not administered by the commission 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. The commission 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.

5.05(2m)(c)15. 15. Except as provided in subd. 17., if the commission refers a matter to the district attorney specified in subd. 11. for prosecution of a potential violation under subd. 2. or 14. and the district attorney informs the commission that he or she declines to prosecute any alleged civil or criminal violation related to any matter referred to the district attorney by the commission, or the district attorney fails to commence a prosecution of any civil or criminal violation related to any matter referred to the district attorney by the commission within 60 days of the date of the commission’s referral, the commission may refer the matter to the district attorney for another prosecutorial unit that is contiguous to the prosecutorial unit of the district attorney to whom the matter was originally referred. If there is more than one such prosecutorial unit, the chairperson of the commission shall determine the district attorney to whom the matter shall be referred by publicly drawing lots at a meeting of the commission. The district attorney may then commence a civil or criminal prosecution relating to the matter.

5.05(2m)(c)16. 16. Except as provided in subd. 17., if the commission refers a matter to a district attorney under subd. 15. for prosecution of a potential violation under subd. 2. or 14. and the district attorney informs the commission that he or she declines to prosecute any alleged civil or criminal violation related to any matter referred to the district attorney by the commission, or the district attorney fails to commence a prosecution of any civil or criminal violation related to any matter referred to the district attorney by the commission within 60 days of the date of the commission’s referral, the commission may refer the matter to the attorney general. The attorney general may then commence a civil or criminal prosecution relating to the matter.

5.05(2m)(c)17. 17. The commission is not authorized to act under subd. 15. or 16. if a special prosecutor is appointed under s. 978.045 in lieu of the district attorney specified in subd. 11.

5.05(2m)(c)18. 18. Whenever the commission refers a matter to special counsel or to a district attorney or to the attorney general under this subsection, the special counsel, district attorney, or attorney general shall report to the commission concerning any action taken regarding the matter. The report shall be transmitted no later than 40 days after the date of the referral. If the matter is not disposed of during that period, the special counsel, district attorney, or attorney general shall file a subsequent report at the end of each 30-day period following the filing of the initial report until final disposition of the matter.

5.05(2m)(d) (d)

5.05(2m)(d)1. 1. No individual who serves as the commission administrator may have been a lobbyist, as defined in s. 13.62 (11). No such individual may have served in a partisan state or local office.

5.05(2m)(d)2. 2. No employee of the commission, while so employed, may become a candidate, as defined in s. 11.0101 (1), for a state or partisan local office. No individual who is retained by the commission to serve as a special investigator or as special counsel may, while so retained, become a candidate, as defined in s. 11.0101 (1), for any state or local office. A filing officer shall decline to accept nomination papers or a declaration of candidacy from any individual who does not qualify to become a candidate under this paragraph.

5.05(2m)(e) (e) No individual who serves as an employee of the commission and no individual who is retained by the commission to serve as a special investigator or a special counsel may, while so employed or retained, make a contribution to a candidate for state or local office. No individual who serves as an employee of the commission and no individual who is retained by the commission to serve as a special investigator or as special counsel, for 12 months prior to becoming so employed or retained, may have made a contribution to a candidate for a partisan state or local office. In this paragraph, contribution has the meaning given in s. 11.0101 (8).

5.05(2m)(f) (f) Pursuant to any investigation authorized under par. (c), the commission has the power:

5.05(2m)(f)1. 1. To require any person to submit in writing such reports and answers to questions relevant to the proceedings as the commission may prescribe, such submission to be made within such period and under oath or otherwise as the commission may determine.

5.05(2m)(f)2. 2. To order testimony to be taken by deposition before any individual who is designated by the commission and has the power to administer oaths, and, in such instances, to compel testimony and the production of evidence in the same manner as authorized by sub. (1) (b).

5.05(2m)(f)4. 4. To pay witnesses the same fees and mileage as are paid in like circumstances by the courts of this state.

5.05(2m)(f)5. 5. To request and obtain from the department of revenue copies of state income or franchise tax returns and access to other appropriate information under s. 71.78 (4) regarding all persons who are the subject of such investigation.

5.05(2m)(h) (h) If the defendant in an action for a civil violation of chs. 5 to 10 or 12 is a district attorney or a circuit judge or a candidate for either such office, the action shall be brought by the commission. If the defendant in an action for a civil violation of chs. 5 to 10 or 12 is the attorney general or a candidate for that office, the commission may appoint special counsel to bring suit on behalf of the state.

5.05(2m)(i) (i) If the defendant in an action for a criminal violation of chs. 5 to 10 or 12 is a district attorney or a circuit judge or a candidate for either such office, the action shall be brought by the attorney general. If the defendant in an action for a criminal violation of chs. 5 to 10 or 12 is the attorney general or a candidate for that office, the commission may appoint a special prosecutor to conduct the prosecution on behalf of the state.

5.05(2m)(j) (j) Any special counsel or prosecutor who is appointed under par. (h) or (i) shall be independent of the attorney general and need not be a state employee at the time of his or her appointment.