Chapter 5

5.01 Annotation The supreme court has quite consistently construed the provisions of election statutes as directory rather than mandatory so as to preserve the will of the elector. Lanser v. Koconis, 62 Wis. 2d 86, 214 N.W.2d 425 (1974).

5.01 Annotation When 40 percent of registered voters were denied ballots in an election to remove a county seat, the election was set aside even though the outcome probably was not affected. McNally v. Tollander, 100 Wis. 2d 490, 302 N.W.2d 440 (1981).

5.01 Annotation Sub. (1) applies only after an election has been held and the will of the people manifested. City of Chippewa Falls v. Town of Hallie, 231 Wis. 2d 85, 604 N.W.2d 300 (Ct. App. 1999), 99-0832.

5.01 Annotation Only substantial violations of the election law should operate to vacate an election. Carlson v. Oconto County Board of Canvassers, 2001 WI App 20, 240 Wis. 2d 438, 623 N.W.2d 195, 00-1788.

5.02 5.02 Definitions. In chs. 5 to 12, unless the context requires otherwise:

5.02(1c) (1c) “Automatic tabulating equipment” means apparatus which automatically examines and counts votes recorded on ballots or voting machines and tabulates the results.

5.02(1e) (1e) “Ballot” means a ballot label, sheet of paper or envelope on which votes are recorded. The term also includes a sheet or card, filmstrip or other device listing or containing information relative to offices, candidates and referenda which is placed, projected or composed on the board or screen inside a voting machine.

5.02(1q) (1q) “Block” means an area which is the smallest geographic area used by the U.S. bureau of the census for data collection and tabulation.

5.02(2) (2) “County clerk” includes the executive director of the county board of election commissioners and their authorized representatives.

5.02(3) (3) “Educational officer” means the state superintendent and school board members.

5.02(3m) (3m) “Elected official” means an individual who is elected to a national, state or local office.

5.02(4) (4) “Election” means every public primary and election.

5.02(4c) (4c) “Election district” means a municipality that is not divided into wards, except as otherwise provided in s. 8.17 (1) (b).

5.02(4e) (4e) “Election official” means an individual who is charged with any duties relating to the conduct of an election.

5.02(4g) (4g) “Election registration official” means an election official assigned under s. 6.28 (1) (a) or 7.30 to register electors.

5.02(4m) (4m) “Electronic voting system” means a system in which votes are recorded on ballots, and the votes are subsequently counted and tabulated by automatic tabulating equipment. The term also includes a voting machine on which votes are recorded and tabulated by electronic means.

5.02(4s) (4s) “Federal election” means any election at which a national office appears on the ballot.

5.02(4v) (4v) For purposes of chs. 5 to 10 and 12, “filing officer” means the following:

5.02(4v)(a) (a) For a candidate for state office, as defined in sub. (23), the elections commission.

5.02(4v)(b) (b) For a candidate seeking local office, the clerk of the most populous jurisdiction for which the candidate seeks office.

5.02(4v)(c) (c) For a candidate for municipal judge elected under s. 755.01 (4), the county clerk or board of election commissioners of the county having the largest portion of the population in the jurisdiction served by the judge.

5.02(4v)(d) (d) For a candidate for school board member, the school district clerk.

Effective date note NOTE: Sub. (4v) is created eff. 7-1-25 by 2023 Wis. Act 126.

5.02(5) (5) “General election” means the election held in even-numbered years on the Tuesday after the first Monday in November to elect United States senators, representatives in congress, presidential electors, state senators, representatives to the assembly, district attorneys, state officers other than the state superintendent and judicial officers, and county officers other than supervisors and county executives.

5.02(6) (6) “Governing body” means the common council of a city, board of supervisors of a town or board of trustees of a village.

5.02(6m) (6m) “Identification” means any of the following documents issued to an individual:

5.02(6m)(a) (a) One of the following documents that is unexpired or if expired has expired after the date of the most recent general election:

5.02(6m)(a)1. 1. An operator’s license issued under ch. 343.

5.02(6m)(a)2. 2. An identification card issued under s. 343.50.

5.02(6m)(a)3. 3. An identification card issued by a U.S. uniformed service.

5.02(6m)(a)4. 4. A U.S. passport.

5.02(6m)(b) (b) A certificate of U.S. naturalization that was issued not earlier than 2 years before the date of an election at which it is presented.

5.02(6m)(c) (c) An unexpired driving receipt under s. 343.11.

5.02(6m)(d) (d) An unexpired identification card receipt issued under s. 343.50.

5.02(6m)(e) (e) An identification card issued by a federally recognized Indian tribe in this state.

5.02(6m)(f) (f) An unexpired identification card issued by a university or college in this state that is accredited, as defined in s. 39.30 (1) (d), or by a technical college in this state that is a member of and governed by the technical college system under ch. 38, that contains the date of issuance and signature of the individual to whom it is issued and that contains an expiration date indicating that the card expires no later than 2 years after the date of issuance if the individual establishes that he or she is enrolled as a student at the university or college on the date that the card is presented.

5.02 Note NOTE: In Luft v. Evers, 963 F.3d 665 (2020), the U.S. Court of Appeals for the 7th Circuit affirmed the judgment in One Wisconsin Institute, Inc. v. Thomsen, 198 F. Supp. 3d 896 (2016), that “the student-ID provision is invalid” on the alternative ground that the restriction that a student ID card “is not sufficient for voting unless the student also shows proof of current enrollment” is unconstitutional.

5.02(6m)(g) (g) An unexpired veterans identification card issued by the veterans health administration of the federal department of veterans affairs.

5.02(7) (7) “Judge” means a court of appeals judge or a judge of a circuit court.

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).