Chapter 5

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.

5.05(2m)(k) (k) The commission’s power to initiate civil actions under this subsection for the enforcement of chs. 5 to 10 or 12 shall be the exclusive remedy for alleged civil violations of chs. 5 to 10 or 12.

5.05(2q) (2q) Supplemental funding for ongoing investigations. The commission may request supplemental funds to be credited to the appropriation account under s. 20.510 (1) (be) for the purpose of continuing an ongoing investigation initiated under sub. (2m). A request under this subsection shall be filed with the secretary of administration and the cochairpersons of the joint committee on finance in writing and shall contain a statement of the action requested, the purposes therefor, the statutory provision authorizing or directing the performance of the action, and information about the nature of the investigation for which the commission seeks supplemental funds, excluding the name of any individual or organization that is the subject of the investigation. If the cochairpersons of the joint committee on finance do not notify the secretary of administration that the committee has scheduled a meeting for the purpose of reviewing the request within 14 working days after the commission filed the request, the secretary shall supplement the appropriation under s. 20.510 (1) (be) from the appropriation under s. 20.505 (1) (d) in an amount not to exceed the amount the commission requested. If, within 14 working days after the commission filed the request, the cochairpersons of the joint committee on finance notify the secretary that the committee has scheduled a meeting for the purpose of reviewing the commission’s request under this subsection, the secretary may supplement the appropriation under s. 20.510 (1) (be) only with the committee’s approval. The committee and the secretary shall notify the commission of all their actions taken under this subsection.

5.05(2w) (2w) Elections commission. The elections commission has the responsibility for the administration of chs. 5 to 10 and 12.

5.05(3d) (3d) Administrator. The commission shall appoint an administrator in the manner provided under s. 15.61 (1) (b). The administrator shall be outside the classified service. The administrator shall appoint such other personnel as he or she requires to carry out the duties of the commission and may designate a commission employee to serve as the commission’s legal counsel. The administrator shall perform such duties as the commission assigns to him or her in the administration of chs. 5 to 10 and 12.

5.05(3g) (3g) Chief election officer. The commission administrator shall serve as the chief election officer of this state.

5.05(4) (4) Employees. All employees of the commission shall be nonpartisan.

5.05(5e) (5e) Annual report. The commission shall submit an annual report under s. 15.04 (1) (d) and shall include in its annual report the names and duties of all individuals employed by the commission and a summary of its determinations and advisory opinions issued under sub. (6a). Except as authorized or required under sub. (5s) (f), the commission shall make sufficient alterations in the summaries to prevent disclosing the identities of individuals or organizations involved in the decisions or opinions. The commission shall identify in its report the statutory duties of the commission administrator, together with a description of the manner in which those duties are being fulfilled. Notwithstanding sub. (5s) and s. 12.13 (5), the commission shall also specify in its report the total number of investigations conducted by the commission since the last annual report and a description of the nature of each investigation. The commission shall make such further reports on the matters within its jurisdiction and such recommendations for further legislation as it deems desirable.

5.05(5f) (5f) Advice to commission. The joint committee on legislative organization shall be advisory to the commission on all matters relating to operation of the commission.

5.05(5s) (5s) Access to records. Records obtained or prepared by the commission in connection with an investigation, including the full text of any complaint received by the commission, are not subject to the right of inspection and copying under s. 19.35 (1), except as follows:

5.05(5s)(a) (a) The commission shall permit inspection of records that are distributed or discussed in the course of a meeting or hearing by the commission in open session. The commission shall post on its Internet site the draft minutes of each meeting or hearing conducted by the commission in open session no later than 48 hours after the completion of the meeting or hearing. The commission shall post minutes approved by the commission no later than 48 hours after the minutes are approved. The commission may indicate whether minutes posted on its Internet site have been approved by the commission or are in draft form. Minutes posted pursuant to this paragraph shall include a summary of every action that the commission voted on, a record of each member’s vote for or against every action requiring a vote, a record of all motions and seconds made by each member, including the full text of each motion debated and voted on by the commission, and a record of each member’s status as being present or absent for any part of a meeting or hearing. The commission shall maintain all minutes published under this paragraph on its Internet site so that the minutes are accessible to the public at all times.

5.05(5s)(am) (am) The commission shall provide to the joint committee on finance records obtained or prepared by the commission in connection with an ongoing investigation when required under sub. (2q).

5.05(5s)(b) (b) Investigatory records of the commission may be made public in the course of a prosecution initiated under chs. 5 to 10 or 12.

5.05(5s)(bm) (bm) The commission shall provide investigatory records to the state auditor and the employees of the legislative audit bureau to the extent necessary for the bureau to carry out its duties under s. 13.94.

5.05(5s)(c) (c) The commission shall provide information from investigation and hearing records that pertains to the location of individuals and assets of individuals as requested under s. 49.22 (2m) by the department of children and families or by a county child support agency under s. 59.53 (5).

5.05(5s)(d) (d) If the commission commences a civil prosecution of a person for an alleged violation of chs. 5 to 10 or 12 as the result of an investigation, the person who is the subject of the investigation may authorize the commission to make available for inspection and copying under s. 19.35 (1) records of the investigation pertaining to that person if the records are available by law to the subject person and the commission shall then make those records available.

5.05(5s)(e) (e) The following records of the commission are open to public inspection and copying under s. 19.35 (1):

5.05(5s)(e)1. 1. Any record of the action of the commission authorizing the filing of a civil complaint under sub. (2m) (c) 6.

5.05(5s)(e)2. 2. Any record of the action of the commission referring a matter to a district attorney or other prosecutor for investigation or prosecution.

5.05(5s)(e)3. 3. Any record containing a finding that a complaint does not raise a reasonable suspicion that a violation of the law has occurred.

5.05(5s)(e)4. 4. Any record containing a finding, following an investigation, that no probable cause exists to believe that a violation of the law has occurred.

5.05(5s)(f) (f) The commission shall make public formal and informal advisory opinions and records obtained in connection with requests for formal or informal advisory opinions relating to matters under the jurisdiction of the commission, including the identity of individuals requesting such opinions or organizations or governmental bodies on whose behalf they are requested.

5.05(5t) (5t) Guidance following binding court decisions. Within 2 months following the publication of a decision of a state or federal court that is binding on the commission and this state, the commission shall issue updated guidance or formal advisory opinions, commence the rule-making procedure to revise administrative rules promulgated by the commission, or request an opinion from the attorney general on the applicability of the court decision.

5.05(6a) (6a) Advisory opinions.

5.05(6a)(a) (a)

5.05(6a)(a)1. 1. Any individual, either personally or on behalf of an organization or governmental body, may make a request of the commission in writing, electronically, or by telephone for a formal or informal advisory opinion regarding the propriety under chs. 5 to 10 or 12 of any matter to which the person is or may become a party. Any appointing officer, with the consent of a prospective appointee, may request of the commission a formal or informal advisory opinion regarding the propriety under chs. 5 to 10 or 12 of any matter to which the prospective appointee is or may become a party. The commission shall review a request for an advisory opinion and may issue a formal or informal written or electronic advisory opinion to the person making the request. Except as authorized or required for opinions specified in sub. (5s) (f), the commission’s deliberations and actions upon such requests shall be in meetings not open to the public. A member of the commission may, by written request, require the commission to review an advisory opinion.

5.05(6a)(a)2. 2. To have legal force and effect, each formal and informal advisory opinion issued by the commission must be supported by specific legal authority under a statute or other law, or by specific case or common law authority. Each formal and informal advisory opinion shall include a citation to each statute or other law and each case or common law authority upon which the opinion is based, and shall specifically articulate or explain which parts of the cited authority are relevant to the commission’s conclusion and why they are relevant.

5.05(6a)(a)3. 3. No person acting in good faith upon a formal or informal advisory opinion issued by the commission under this subsection is subject to criminal or civil prosecution for so acting, if the material facts are as stated in the opinion request.

5.05(6a)(a)4. 4. At each regular meeting of the commission, the administrator shall review informal advisory opinions requested of and issued by the administrator and that relate to recurring issues or issues of first impression for which no formal advisory opinion has been issued. The commission may determine to issue a formal advisory opinion adopting or modifying the informal advisory opinion. If the commission disagrees with a formal or informal advisory opinion that has been issued by or on behalf of the commission, the commission may withdraw the opinion, issue a revised formal or informal advisory opinion, or request an opinion from the attorney general. No person acting after the date of the withdrawal or issuance of the revised advisory opinion is exempted from prosecution under this subsection if the opinion upon which the person’s action is based has been withdrawn or revised in relevant degree.

5.05(6a)(a)5. 5. Except as authorized or required under sub. (5s) (f), no member or employee of the commission may make public the identity of the individual requesting a formal or informal advisory opinion or of individuals or organizations mentioned in the opinion.

5.05(6a)(b) (b)

5.05(6a)(b)1. 1. The commission may authorize the commission administrator or his or her designee to issue an informal written advisory opinion or transmit an informal advisory opinion electronically on behalf of the commission, subject to such limitations as the commission deems appropriate. Every informal advisory opinion shall be consistent with applicable formal advisory opinions issued by the commission, statute or other law, and case law.

5.05(6a)(b)2. 2. Any individual may request in writing, electronically, or by telephone an informal advisory opinion from the commission under this paragraph. The commission’s designee shall provide a written response, a written reference to an applicable statute or law, or a written reference to a formal advisory opinion of the commission to the individual, or shall refer the request to the commission for review and the issuance of a formal advisory opinion.

5.05(6a)(b)3. 3. Any person receiving an informal advisory opinion under this paragraph may, at any time, request a formal advisory opinion from the commission on the same matter.

5.05(6a)(c) (c)

5.05(6a)(c)1. 1. Any individual may request in writing, electronically, or by telephone a formal advisory opinion from the commission or the review or modification of a formal advisory opinion issued by the commission under this paragraph. The individual making the request shall include all pertinent facts relevant to the matter. The commission shall review a request for a formal advisory opinion and may issue a formal advisory opinion to the individual making the request. Except as authorized or required for opinions specified in sub. (5s) (f), the commission’s deliberations and actions upon such requests shall be in meetings not open to the public.

5.05(6a)(c)2. 2. Any person requesting a formal advisory opinion under this paragraph may request a public or private hearing before the commission to discuss the opinion. The commission shall grant a request for a public or private hearing under this paragraph.

5.05(6a)(c)3. 3. Promptly upon issuance of each formal advisory opinion, the commission shall publish the opinion together with the information specified under sub. (5s) (f) on the commission’s Internet site.

5.05(6a)(c)4. 4. If the commission declines to issue a formal advisory opinion, it may refer the matter to the attorney general or to the standing legislative oversight committees.

5.05(7) (7) Administrative meetings and conferences. The commission shall conduct regular information and training meetings at various locations in the state for county and municipal clerks and other election officials. Administrative meetings shall be designed to explain the election laws and the forms and rules of the commission, to promote uniform procedures and to assure that clerks and other officials are made aware of the integrity and importance of the vote of each citizen. The commission may conduct conferences relating to election laws, practice and procedure. The commission may charge persons attending the administrative meetings and conferences for its costs incurred in conducting the meetings and conferences at a rate not exceeding the per capita cost incurred by the commission.

5.05(9) (9) Standing. The commission has standing to commence or intervene in any civil action or proceeding for the purpose of enforcing the laws regulating the conduct of elections or election campaigns, other than laws regulating campaign financing, or ensuring their proper administration.

5.05(10) (10) State election administration plan. With the approval of the joint committee on finance as provided in this subsection, the commission shall adopt and modify as necessary a state plan that meets the requirements of P.L. 107-252 to enable participation by this state in federal financial assistance programs authorized under that law. The commission shall adopt the plan and any modifications only after publishing a class 1 notice under ch. 985 or posting on the Internet a statement describing the proposed plan or modification and receiving public comment thereon. After approval of the proposed plan or any modification of the plan by the commission, the commission shall submit the proposed plan or modification to the joint committee on finance for the approval of the committee. The commission may adopt the proposed plan or modification only if the committee approves the proposed plan or modification.

5.05(11) (11) Aids to counties and municipalities. From the appropriations under s. 20.510 (1) (t) and (x), the commission may provide financial assistance to eligible counties and municipalities for election administration costs in accordance with the plan adopted under sub. (10). As a condition precedent to receipt of assistance under this subsection, the commission shall enter into an agreement with the county or municipality receiving the assistance specifying the intended use of the assistance and shall ensure compliance with the terms of the agreement. Each agreement shall provide that if the federal government objects to the use of any assistance moneys provided to the county or municipality under the agreement, the county or municipality shall repay the amount of the assistance provided to the commission.

5.05(12) (12) Voter education. The commission may conduct or prescribe requirements for educational programs to inform electors about voting procedures, voting rights, and voting technology. The commission shall conduct an educational program for the purpose of educating electors who cast paper ballots, ballots that are counted at a central counting location, and absentee ballots of the effect of casting excess votes for a single office.

5.05(13) (13) Toll-free election information and requests.

5.05(13)(a) (a) The commission shall maintain one or more toll-free telephone lines for electors to report possible voting fraud and voting rights violations, to obtain general election information, and to access information concerning their registration status, current polling place locations, and other information relevant to voting in elections.

5.05(13)(b) (b) The commission may maintain a free access system under which an elector who votes under s. 6.96 or 6.97 may ascertain current information concerning whether the elector’s vote has been counted, and, if the vote will not be counted, the reason that it will not be counted.

5.05(13)(c) (c) The commission shall maintain a freely accessible system under which a military elector, as defined in s. 6.34 (1), or an overseas elector who casts an absentee ballot may ascertain whether the ballot has been received by the appropriate municipal clerk.

5.05(13)(d) (d) The commission shall designate and maintain at least one freely accessible means of electronic communication which shall be used for the following purposes:

5.05(13)(d)1. 1. To permit a military elector, as defined in s. 6.34 (1), or an overseas elector to request a voter registration application or an application for an absentee ballot at any election at which the elector is qualified to vote in this state.

5.05(13)(d)2. 2. To permit a military elector or an overseas elector under subd. 1. to designate whether the elector wishes to receive the applications under subd. 1. electronically or by mail.

5.05(13)(d)3. 3. To permit a municipal clerk to transmit to a military elector or an overseas elector under subd. 1. a registration application or absentee ballot application electronically or by mail, as directed by the elector under subd. 2., together with related voting, balloting, and election information.

5.05(14) (14) Information from county and municipal clerks.

5.05(14)(a) (a) The commission may request information from county and municipal clerks relating to election administration, performance of electronic voting systems and voting machines, and use of paper ballots in elections.

5.05(14)(b) (b) The commission shall establish a subscription service whereby a person may electronically access the absentee ballot information provided under s. 6.33 (5) (a), including semiweekly updates of such information.

5.05(14)(c) (c) On election night the commission shall provide a link on its Internet site to the posting of each county’s election returns on each county’s Internet site.

5.05(15) (15) Registration list. The commission is responsible for the design and maintenance of the official registration list under s. 6.36. The commission shall require all municipalities to use the list in every election and may require any municipality to adhere to procedures established by the commission for proper maintenance of the list.

5.05(16) (16) Policies and procedures.

5.05(16)(a) (a) Annually, the commission shall adopt written policies and procedures in order to govern its internal operations and management and shall annually report such policies and procedures to the appropriate standing committees of the legislature under s. 13.172 (3).

5.05(16)(b) (b) Notwithstanding par. (a), the commission may reconsider at any time any policy or procedure adopted as provided under par. (a). If, upon reconsideration, the commission revises a previously reported policy or procedure, the commission shall report the revision to the appropriate standing committees of the legislature under s. 13.172 (3).

5.05(16)(c) (c) The commission may reconsider at any time any written directives or written guidance provided to the general public or to any person subject to the provisions of chs. 5 to 10 and 12 with regard to the enforcement and administration of those provisions.

5.05(17) (17) Payments. The commission may accept payment by credit card, debit card, or other electronic payment mechanism for any amounts owed pursuant to the administration of chs. 5 to 10 or 12, and may charge a surcharge to the payer to recover charges associated with the acceptance of that electronic payment.

5.05(18) (18) Electronic poll lists. The commission may facilitate the creation and maintenance of electronic poll lists for purposes of s. 6.79 including entering into contracts with vendors and establishing programs for development and testing.

5.05 History History: 1973 c. 334; 1975 c. 85, 93, 199; 1977 c. 29; 1977 c. 196 s. 131; 1977 c. 418, 427, 447; 1979 c. 32 s. 92 (8); 1979 c. 89, 154, 328; 1983 a. 27, 484, 524, 538; 1985 a. 303; 1985 a. 304 ss. 3, 155; 1989 a. 31, 192; 1999 a. 182; 2001 a. 109; 2003 a. 35, 265, 266, 327; 2005 a. 177; 2007 a. 1 ss. 2 to 19, 94, 99, 100, 103, 104, 107, 109, 111, 112, 114, 116, 127, 128; 2007 a. 20; 2009 a. 28, 180; 2011 a. 75; 2013 a. 20, 166; 2015 a. 2, 117; 2015 a. 118 ss. 3 to 54, 266 (10); 2015 a. 261; 2017 a. 365 s. 111; 2017 a. 366, 369; 2021 a. 38.

5.05 Cross-reference Cross-reference: See also EL, Wis. adm. code.

5.05 Annotation Notice to the district attorney, attorney general, or governor is not a prerequisite to a civil forfeiture under sub. (1) (c). State Elections Board v. Hales, 149 Wis. 2d 306, 440 N.W.2d 579 (Ct. App. 1989).

5.05 Annotation A party being investigated by the Wisconsin Elections Board is not entitled under sub. (1) (b) to attend and participate in all depositions conducted by the board. Notice to the party being investigated under sub. (1) (b) is limited to the board’s exercise of its subpoena power and does not relate in any way to the conduct of depositions the board may wish to take. State ex rel. Block v. Circuit Court, 2000 WI App 72, 234 Wis. 2d 183, 610 N.W.2d 213, 00-0507.

5.05 Annotation County clerks are not to interpret Wisconsin’s election laws and make declarations based on those interpretations. It is the Wisconsin Elections Commission that is responsible for guidance in the administration and enforcement of Wisconsin’s election laws, not the county clerks. Jefferson v. Dane County, 2020 WI 90, 394 Wis. 2d 602, 951 N.W.2d 556, 20-0557.

5.05 Annotation Unless otherwise stated in a specific statute, criminal and civil forfeiture provisions of the election, lobby, and ethics laws can be enforced by a district attorney independently of the Government Accountability Board (GAB). A referral following an investigation by GAB is not required. A district attorney may request prosecutorial or investigative assistance from the attorney general in connection with any duty of the district attorney under those laws. If there has been a referral to the district attorney by GAB under sub. (2m) (c) 11., 14., or 15., the district attorney must retain ultimate supervisory authority over the matter referred unless a special prosecutor has been appointed to serve in lieu of the district attorney. OAG 10-08.

5.05 Annotation The Government Accountability Board (GAB) and district attorneys possess joint and co-equal authority to investigate possible violations of the election, lobby, or ethics laws and to prosecute civil forfeiture actions under those laws. Unless otherwise stated in a specific statutory provision, the district attorney possesses the authority to prosecute criminal proceedings under those laws. GAB has no statutory authority to prosecute criminal proceedings under those laws except as stated in sub. (2m) (i). OAG 10-08.

5.05 Annotation For the attorney general to prosecute violations of the election, lobby, and ethics laws, there must be a specific statute authorizing the attorney general to independently initiate the prosecution of civil and criminal actions involving violations of those laws unless there is a referral to the attorney general by the Government Accountability Board under sub. (2m) (c) 16. or unless the attorney general or an assistant attorney general has been appointed as special prosecutor to serve in lieu of the district attorney. OAG 10-08.

5.05 Annotation Any cause of action under sub. (2m) to determine a candidate’s ballot eligibility belongs to the Wisconsin Elections Commission rather than to individual voters. Stencil v. Johnson, 605 F. Supp. 3d 1109 (2022).

5.055 5.055 Election assistance commission standards board. The commission administrator shall, in consultation with the commission, appoint an individual to represent this state as a member of the federal election assistance commission standards board. The administrator shall also conduct and supervise a process for the selection of an election official by county and municipal clerks and boards of election commissioners to represent local election officials of this state as a member of the federal election assistance commission standards board. The administrator shall ensure that the members of the federal election assistance commission standards board representing this state shall at no time be members of the same political party. Upon appointment or election of any new member of the federal election assistance commission standards board representing this state, the administrator shall transmit a notice of that member’s appointment or election to the officer or agency designated by federal law.

5.055 History History: 2003 a. 265; 2007 a. 1; 2015 a. 118.

5.056 5.056 Matching program with secretary of transportation. The commission administrator shall enter into the agreement with the secretary of transportation specified under s. 85.61 (1) to match personally identifiable information on the official registration list maintained by the commission under s. 6.36 (1) and the information specified in s. 6.34 (2m) with personally identifiable information maintained by the department of transportation.