Chapter 5

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.

5.056 History History: 2003 a. 265; 2007 a. 1; 2015 a. 118, 261.

5.06 5.06 Compliance review; appeal.

5.06(1) (1) Whenever any elector of a jurisdiction or district served by an election official believes that a decision or action of the official or the failure of the official to act with respect to any matter concerning nominations, qualifications of candidates, voting qualifications, including residence, ward division and numbering, recall, ballot preparation, election administration or conduct of elections is contrary to law, or the official has abused the discretion vested in him or her by law with respect to any such matter, the elector may file a written sworn complaint with the commission requesting that the official be required to conform his or her conduct to the law, be restrained from taking any action inconsistent with the law or be required to correct any action or decision inconsistent with the law or any abuse of the discretion vested in him or her by law. The complaint shall set forth such facts as are within the knowledge of the complainant to show probable cause to believe that a violation of law or abuse of discretion has occurred or will occur. The complaint may be accompanied by relevant supporting documents. The commission may conduct a hearing on the matter in the manner prescribed for treatment of contested cases under ch. 227 if it believes such action to be appropriate.

5.06(2) (2) No person who is authorized to file a complaint under sub. (1), other than the attorney general or a district attorney, may commence an action or proceeding to test the validity of any decision, action or failure to act on the part of any election official with respect to any matter specified in sub. (1) without first filing a complaint under sub. (1), nor prior to disposition of the complaint by the commission. A complaint is deemed disposed of if the commission fails to transmit an acknowledgment of receipt of the complaint within 5 business days from the date of its receipt or if the commission concludes its investigation without a formal decision.

5.06(3) (3) A complaint under this section shall be filed promptly so as not to prejudice the rights of any other party. In no case may a complaint relating to nominations, qualifications of candidates or ballot preparation be filed later than 10 days after the complainant knew or should have known that a violation of law or abuse of discretion occurred or was proposed to occur.

5.06(4) (4) The commission may, on its own motion, investigate and determine whether any election official, with respect to any matter concerning nominations, qualifications of candidates, voting qualifications, including residence, ward division and numbering, recall, ballot preparation, election administration or conduct of elections, has failed to comply with the law or abused the discretion vested in him or her by law or proposes to do so.

5.06(5) (5) Upon receipt of a complaint under sub. (1), or upon its own motion, the commission may order any election official to immediately transfer to its possession any original documents in the custody of the official which the commission finds to be necessary and relevant to permit review of compliance with the laws concerning nominations, qualifications of candidates, ward division and numbering, recall or ballot preparation or the proper administration of such laws.

5.06(6) (6) The commission may, after such investigation as it deems appropriate, summarily decide the matter before it and, by order, require any election official to conform his or her conduct to the law, restrain an official from taking any action inconsistent with the law or require an official to correct any action or decision inconsistent with the law. The commission shall immediately transmit a copy of the order to the official. An order issued under this subsection is effective immediately or at such later time as may be specified in the order.

5.06(7) (7) The commission may withdraw, modify or correct an order issued under sub. (6) within a timely period if it finds such action to be appropriate.

5.06(8) (8) Any election official or complainant who is aggrieved by an order issued under sub. (6) may appeal the decision of the commission to circuit court for the county where the official conducts business or the complainant resides no later than 30 days after issuance of the order. Pendency of an appeal does not stay the effect of an order unless the court so orders.

5.06(9) (9) The court may not conduct a de novo proceeding with respect to any findings of fact or factual matters upon which the commission has made a determination, or could have made a determination if the parties had properly presented the disputed matters to the commission for its consideration. The court shall summarily hear and determine all contested issues of law and shall affirm, reverse or modify the determination of the commission, according due weight to the experience, technical competence and specialized knowledge of the commission, pursuant to the applicable standards for review of agency decisions under s. 227.57.

5.06(10) (10) This section does not apply to matters arising in connection with a recount under s. 9.01.

5.06 History History: 1983 a. 484; 1985 a. 182 s. 57; 1985 a. 304; 1989 a. 192; 2015 a. 118 s. 266 (10).

5.06 Annotation The plaintiff’s failure to comply with the method of review prescribed by this section deprived the circuit court of jurisdiction to hear the plaintiff’s original action regarding election irregularities. Kuechmann v. School District, 170 Wis. 2d 218, 487 N.W.2d 639 (Ct. App. 1992).

5.061 5.061 Compliance with federal Help America Vote Act.

5.061(1) (1) Whenever any person believes that a violation of Title III of P.L. 107-252 has occurred, is occurring, or is proposed to occur with respect to an election for national office in this state, that person may file a written, verified complaint with the commission.

5.061(2) (2) If the commission receives more than one complaint under sub. (1) relating to the same subject matter, the commission may consolidate the complaints for purposes of this section.

5.061(3) (3) A complainant under sub. (1) or any of the complainants in a consolidated complaint under sub. (2) may request a hearing and the matter shall then be treated as a contested case under ch. 227, except that the commission shall make a final determination with respect to the merits of the complaint and issue a decision within 89 days of the time that the complaint or the earliest of any complaints was filed, unless the complainant, or each of any complainants whose complaints are consolidated, consents to a specified longer period.

5.061(4) (4) If the commission finds the complaint to be without merit, it shall issue a decision dismissing the complaint. If the commission finds that the violation alleged in the complaint has occurred, is occurring, or is proposed to occur, the commission shall order appropriate relief, except that the commission shall not issue any order under this subsection affecting the right of any person to hold an elective office or affecting the canvass of an election on or after the date of that election.

5.061 History History: 2003 a. 265; 2015 a. 118 s. 266 (10).

5.07 5.07 Action to compel compliance. Whenever a violation of the laws regulating the conduct of elections or election campaigns, other than a violation of the laws regulating campaign financing, occurs or is proposed to occur, the attorney general or the district attorney of the county where the violation occurs or is proposed to occur may sue for injunctive relief, a writ of mandamus or prohibition, or other such legal or equitable relief as may be appropriate to compel compliance with the law. No bond is required in such actions.

5.07 History History: 1973 c. 334; 1983 a. 484 s. 136m; Stats. 1983 s. 5.07; 1985 a. 304; 2015 a. 118.

5.08 5.08 Petition for enforcement. In addition to or in lieu of filing a complaint, any elector may file a verified petition alleging such facts as are within his or her knowledge to indicate that an election official has failed or is failing to comply with any law regulating the conduct of elections or election campaigns, other than a law regulating campaign financing, or proposes to act in a manner inconsistent with such a law, and requesting that an action be commenced for injunctive relief, a writ of mandamus or prohibition or other such legal or equitable relief as may be appropriate to compel compliance with the law. The petition shall be filed with the district attorney for the county having jurisdiction to prosecute the alleged failure to comply under s. 978.05 (1) and (2). The district attorney may then commence the action or dismiss the petition. If the district attorney declines to act upon the petition or if the district attorney fails to act upon the petition within 15 days of the date of filing, the petitioner may file the same petition with the attorney general, who may then commence the action.