Chapter 5

5.76 History History: 1979 c. 311; 1985 a. 304.

5.76 Cross-reference Cross-reference: See also ch. EL 7, Wis. adm. code.

5.77 5.77 Applicable procedures.

5.77(1) (1) So far as applicable, the procedure provided for voting paper ballots applies when an electronic voting system employing the use of ballots distributed to electors is used.

5.77(2) (2) So far as applicable, the procedure provided for voting with mechanical voting machines applies when an electronic voting system employing the use of electronic voting machines is used.

5.77 History History: 1979 c. 311.

5.77 Cross-reference Cross-reference: See also ch. EL 7, Wis. adm. code.

5.78 5.78 Voting booths. At polling places where an electronic voting system employing the use of ballots distributed to electors is used, the municipality shall supply a sufficient number of voting booths for the use of electors as provided in s. 5.35 (2).

5.78 History History: 1979 c. 311.

5.79 5.79 Instruction of electors. At polling places where an electronic voting system employing the use of ballots and voting devices is used, the election officials shall offer each elector instruction in the operation of the voting device and ballot before the elector enters the voting booth. No instructions may be given after the elector has entered the voting booth, except as authorized under s. 6.82 (2). All instructions shall be given by election officials in such a manner that they may be observed by other persons in the polling place.

5.79 History History: 1979 c. 311; 2001 a. 16.

5.80 5.80 Demonstrator electronic voting system. When an electronic voting system is used in a forthcoming election, the municipal clerk may provide, for the purpose of instructing electors in the election, one or more demonstrator electronic voting systems using the names of fictitious candidates or fictitious questions for placement in any public building within the municipality in which the election occurs. If such placement of a demonstrator takes place it shall be made available at least 30 days before the election.

5.80 History History: 1979 c. 311.

5.81 5.81 Ballot information; arrangement; absentee ballots.

5.81(1) (1) Whenever the statutes provide for the use of separate ballots or columns or rows for offices, parties or referenda, and an electronic voting system in which ballots are distributed to electors is used at a polling place, a single ballot may be used for all offices, referenda and parties. The ballot information, whether placed on the ballot or on the voting device, shall, as far as practicable, be grouped and ordered in the same manner as provided for other ballots under this chapter, except that the information on the ballot need not be in separate columns or rows.

5.81(3) (3) If a municipality utilizes an electronic voting system in which ballots distributed to electors are employed, absentee ballots may consist of ballots utilized with the system or paper ballots and envelopes voted in person in the office of the municipal clerk or voted by mail.

5.81(4) (4) In partisan primary elections, if a ballot contains the names of candidates of more than one party, it shall provide a space for electors to designate a party preference. Failure to designate a preference does not invalidate any votes cast by an elector, except as provided in s. 7.50 (1) (d).

5.81 History History: 1979 c. 311; 1985 a. 304; 1999 a. 182; 2001 a. 16; 2011 a. 32.

5.82 5.82 Write-in ballots. If the ballot employed by a municipality does not provide a space for write-in votes, the municipality shall provide a separate write-in ballot, which may be in the form of a paper ballot, to permit electors to write in the names of persons whose names are not on the ballot whenever write-in votes are authorized.

5.82 History History: 1979 c. 311; 1987 a. 391; 2001 a. 16.

5.83 5.83 Preparation for use of voting devices; comparison of ballots. Where voting devices are used at a polling place, the municipal clerk shall cause the voting devices to be put in order, set, adjusted and made ready for voting when delivered to the polling place. Before the opening of the polls the inspectors shall compare the ballots used in the voting devices with the sample ballots furnished and see that the names, numbers and letters thereon agree and shall certify thereto on forms provided by the commission.

5.83 History History: 1979 c. 311; 2015 a. 118 s. 266 (10).

5.84 5.84 Testing of equipment; requirements for programs and ballots.

5.84(1) (1) Where any municipality employs an electronic voting system which utilizes automatic tabulating equipment, either at the polling place or at a central counting location, the municipal clerk shall, on any day not more than 10 days prior to the election day on which the equipment is to be utilized, have the equipment tested to ascertain that it will correctly count the votes cast for all offices and on all measures. Public notice of the time and place of the test shall be given by the clerk at least 48 hours prior to the test by publication of a class 1 notice under ch. 985 in one or more newspapers published within the municipality if a newspaper is published therein, otherwise in a newspaper of general circulation therein. The test shall be open to the public. The test shall be conducted by processing a preaudited group of ballots so marked as to record a predetermined number of valid votes for each candidate and on each referendum. The test shall include for each office one or more ballots which have votes in excess of the number allowed by law and, for a partisan primary election, one or more ballots which have votes cast for candidates of more than one recognized political party, in order to test the ability of the automatic tabulating equipment to reject such votes. If any error is detected, the municipal clerk shall ascertain the cause and correct the error. The clerk shall make an errorless count before the automatic tabulating equipment is approved by the clerk for use in the election.

5.84(2) (2) Before beginning the ballot count at each polling place or at the central counting location, the election officials shall witness a test of the automatic tabulating equipment by engaging the printing mechanism and securing a printed result showing a zero count for every candidate and referendum. After the completion of the count, the ballots and programs used shall be sealed and retained under the custody of the municipal clerk in a secure location.

5.84 History History: 1979 c. 311; 2001 a. 16; 2005 a. 92.

5.85 5.85 Receiving, counting, tallying and return of ballots.

5.85(1) (1) At any polling place at which an electronic voting system is utilized, the following procedures for receiving, counting, tallying and return of the ballots shall be used. Whenever paper ballots are utilized at a polling place in combination with ballots employed in an electronic voting system, the paper ballots shall be deposited in a separate ballot box or boxes, according to the types of ballots used. For the purpose of transporting the ballots or the record of the votes cast, the municipal clerk shall provide a secure container for each polling place. At each polling place, the applicable portions of the procedure prescribed for initiating the canvass under s. 7.51 (1) and (2) shall be performed, except that no count of the ballots, except write-in votes and paper ballots used for absentee voting and other purposes authorized by law, may be performed at a polling place if a central counting location is designated for the counting of ballots at that polling place by the municipality.

5.85(2) (2) 

5.85(2)(a) (a) The election officials shall examine the ballots or record of votes cast for write-in votes and shall count and tabulate the write-in votes. The election officials shall count write-in votes as provided in s. 7.50 (2) (d). When an electronic voting system is used in which ballots are distributed to electors, before separating the remaining ballots from their respective covering envelopes, the election officials shall examine the ballots for write-in votes. When an elector has cast a write-in vote, the election officials shall compare the write-in vote with the votes on the ballot to determine whether the write-in vote results in an overvote for any office. In case of an overvote for any office, the election officials shall follow the procedure in par. (b).

5.85(2)(b) (b)

5.85(2)(b)1. 1. In case of an overvote for any office, the election officials may either use the override function of the electronic voting system in order to eliminate the votes for the overvoted office, which shall be noted on the inspector’s statement, or make a true duplicate ballot of all votes on the ballot except for the office that is overvoted in the manner described in this subdivision. If the election officials make a true duplicate ballot, they shall use an official ballot of that kind used by the elector who voted the original ballot, and one of the marking devices, so as to transfer all votes of the elector except for the office overvoted to an official ballot of that kind used in the ward at that election. Unless election officials are selected under s. 7.30 (4) (c) without regard to party affiliation, whenever election officials of both of the 2 major political parties are present, the election officials acting under this subdivision shall consist in each case of at least one election official of each of the parties.

5.85(2)(b)2. 2. On any original ballot upon which there is an overvote and for which a duplicate ballot is made under subd. 1., the election officials shall, in the space on the ballot for official endorsement, identify the ballot as an “Overvoted Ballot” and write a serial number. On any duplicate ballot produced under subd. 1., the election officials shall, in the space on the ballot for official endorsement, identify the ballot as a “Duplicate Overvoted Ballot” and write a serial number. The election officials shall place the same serial number on each “Overvoted Ballot” and its corresponding “Duplicate Overvoted Ballot,” commencing with number “1” and continuing consecutively for each of the ballots for which a “Duplicate Overvoted Ballot” is produced in that ward or election district. The election officials shall initial the “Duplicate Overvoted Ballot” ballots and shall place them in the container for return of the ballots. The “Overvoted Ballot” ballots and their envelopes shall be placed in the “Original Ballots” envelope.

5.85(2)(c) (c) Ballots bearing write-in votes marked in the place designated for write-in votes, bearing the initials of an election official, not resulting in an overvote, and otherwise complying with the election laws as to marking shall be counted, tallied, and their votes recorded on a tally sheet provided by the municipal clerk. Ballots and ballot envelopes shall be separated and all ballots except any that are defective or overvoted shall be placed separately in the container for return of the ballots, along with the ballots marked “Duplicate Overvoted Ballots.”

5.85(3) (3) The election officials shall examine the ballots to determine if any is damaged or defective so that it cannot be counted by the automatic tabulating equipment. If any ballot is damaged or defective so that it cannot be properly counted by the automatic tabulating equipment, the election officials, in the presence of witnesses, shall make a true duplicate ballot of all votes on that ballot by using one of the marking devices so as to transfer all votes of the elector to an official ballot of that kind used by the elector who voted the original ballot in that election. Unless election officials are selected under s. 7.30 (4) (c) without regard to party affiliation, whenever election officials of both of the 2 major political parties are present, the election officials acting under this subsection shall consist in each case of at least one official of each of the parties. On any damaged or defective original ballot, the election officials shall, in the space on the ballot for official endorsement, identify the ballot as a “Damaged Ballot” and write a serial number. On the duplicate ballot produced under this subsection, the election officials shall, in the space for official endorsement, identify the ballot as a “Duplicate Damaged Ballot” and write a serial number. The election officials shall place the same serial number on each “Damaged Ballot” and its corresponding “Duplicate Damaged Ballot,” commencing with number “1” and continuing consecutively for each of the ballots for which a “Duplicate Damaged Ballot” is produced in the ward or election district. The election officials shall initial the “Duplicate Damaged Ballot” ballots, and shall place them in the container for return of the ballots. The officials shall place “Damaged Ballot” ballots and their envelopes in the “Original Ballots” envelope.

5.85(4) (4) The original ballots shall be preserved with the duplicate ballots and delivered by the inspectors to the municipal clerk. The officials shall then make out a slip indicating the number of electors voting in person, number of absentee ballots deposited in the ballot box, and the total number of electors of each ward served by the polling place who voted at the election, which shall be signed by all the inspectors.

5.85(5) (5) If the municipality has designated a central counting location to be used to count ballots under s. 7.51 (1), the inspectors shall count and deposit the paper ballots in the container. The inspectors shall then place the slip made out under sub. (4) in the container. The inspectors shall also place the tally sheet recording the write-in votes and other votes cast on paper ballots, and all other ballots, or the record of the votes cast on an electronic voting system where no ballots are distributed to electors, in the container and shall thereupon immediately seal the container with an adhesive seal provided by the municipal clerk for the purpose in such manner that the seal completely covers the opening in the container, and each of the inspectors shall sign the seal. The “Defective Ballots” envelope, and “Original Ballots” envelope each shall be securely sealed and the flap or end thereof of each signed by the inspectors and returned to the central counting location with the box for return of the ballots, enclosed ballots and returns. Thereupon, the municipal clerk or 2 of the election officials shall forthwith and by the most direct route transport the container and envelopes to the central counting location designated by the municipal clerk. Unless election officials are selected under s. 7.30 (4) (c) without regard to party affiliation, the election officials shall consist in each case of at least one election official of each of the 2 major political parties, whenever officials of both parties are present.

5.85 History History: 1979 c. 311; 1989 a. 192; 1997 a. 127; 2001 a. 16; 2005 a. 149; 2013 a. 179; 2015 a. 261.

5.86 5.86 Proceedings at central counting locations.

5.86(1) (1) All proceedings at each central counting location shall be under the direction of the municipal clerk or an election official designated by the clerk unless the central counting location is at the county seat and the municipal clerk delegates the responsibility to supervise the location to the county clerk, in which case the proceedings shall be under the direction of the county clerk or an election official designated by the county clerk. Unless election officials are selected under s. 7.30 (4) (c) without regard to party affiliation, the employees at each central counting location, other than any specially trained technicians who are required for the operation of the automatic tabulating equipment, shall be equally divided between members of the 2 major political parties under s. 7.30 (2) (a) and all duties performed by the employees shall be by teams consisting of an equal number of members of each political party whenever sufficient persons from each party are available.

5.86(2) (2) At each central counting location, a team of election officials designated by the clerk or other election official having charge of the location under sub. (1) shall check the container returned containing the ballots to determine that all seals are intact, and thereupon shall open the container, check the inspectors’ slip and compare the number of ballots so delivered against the total number of electors of each ward served by the polling place who voted, remove the ballots or record of the votes cast and deliver them to the technicians operating the automatic tabulating equipment. Any discrepancies between the number of ballots and total number of electors shall be noted on a sheet furnished for that purpose and signed by the election officials.

5.86(3) (3) Upon completion of the central count at a county seat, the county clerk shall return any ballots, statements, tally sheets, or envelopes relating solely to a municipal election to the appropriate municipal clerk and any ballots, statements, tally sheets, or envelopes relating solely to a school district election to the school district clerk. In addition, the county clerk shall report the results of the central count of votes for each office or referendum by ward or by combined wards authorized under s. 5.15 (6) (b) to the municipal clerk of the municipality where the votes are cast.

5.86 History History: 1979 c. 311; 1985 a. 304; 1997 a. 127; 2001 a. 109; 2011 a. 115.

5.87 5.87 Tabulating votes.

5.87(1) (1) If a central counting location is not utilized, the procedure for tabulating the votes by the automatic tabulating equipment shall be under the direction of the chief inspector and shall conform to the requirements of the automatic tabulating equipment. If any ballot is not accepted by the automatic tabulating equipment, the election officials shall make a duplicate ballot to replace that ballot in the manner prescribed in s. 5.85 (3). All proceedings at the polling place and at any central counting location shall be open to the public, but no person, except those employed and authorized for the purpose, may touch any ballot, container, envelope, return or equipment.

5.87(2) (2) The commission shall, by rule, prescribe uniform standards for determining the validity of votes cast or attempted to be cast with each electronic voting system approved for use in this state under s. 5.91. The rules shall apply only to situations that may arise in which the validity of a vote or attempted vote cast by an elector utilizing a particular system cannot be determined under s. 7.50.

5.87 History History: 1979 c. 311; 1983 a. 484; 2003 a. 265; 2015 a. 118 s. 266 (10).

5.89 5.89 Official return. The return produced by the automatic tabulating equipment shall be appended to the tally sheet by the canvassers. The return constitutes a part of the official return for the ward or election district. The municipal clerk shall check the totals shown by the return and, if it appears that there is an obvious discrepancy with respect to the number of votes cast in any ward or election district, the clerk shall have the ballots for that ward or election district publicly retabulated to correct the return. Upon completion of the count, the return is open to the public.

5.89 History History: 1979 c. 311.

5.90 5.90 Recounts.

5.90(1) (1) Except as otherwise provided in this subchapter, recounts of votes cast on an electronic voting system shall be conducted in the manner prescribed in s. 9.01. Except as provided in this subsection, sub. (2), and s. 9.01 (1) (b) 8s., if the ballots are distributed to the electors, the board of canvassers shall recount the ballots with automatic tabulating equipment. The board of canvassers shall test the automatic tabulating equipment to be used prior to the recount as provided in s. 5.84, and then the official ballots or the record of the votes cast shall be recounted on the automatic tabulating equipment. In addition, the board of canvassers shall check the ballots for the presence or absence of the initials and other distinguishing marks, shall examine the ballots marked “Rejected”, “Defective”, “Overvoted”, and “Objected to” to determine the propriety of such labels, and shall compare the “Duplicate Overvoted Ballots” and “Duplicate Damaged Ballots” with their respective originals to determine the correctness of the duplicates. Unless a court orders a recount to be conducted by another method under sub. (2), the board of canvassers may determine to conduct the recount of a specific election by hand and may determine to conduct the recount by hand for only certain wards or election districts. If electronic voting machines are used, the board of canvassers shall perform the recount using the permanent paper record of the votes cast by each elector, as generated by the machines.

5.90(2) (2) Any candidate, or any elector when for a referendum, may, by the close of business on the next business day after the last day for filing a petition for a recount under s. 9.01, petition the circuit court for an order requiring ballots under sub. (1) to be counted by hand or by another method approved by the court. The petitioner in such an action bears the burden of establishing by clear and convincing evidence that due to an irregularity, defect, or mistake committed during the voting or canvassing process the results of a recount using automatic tabulating equipment will produce incorrect recount results and that there is a substantial probability that recounting the ballots by hand or another method will produce a more correct result and change the outcome of the election.

5.90(3) (3) A court with whom a petition under sub. (2) is filed shall hear the matter as expeditiously as possible, without a jury. The court may order a recount of the ballots by hand or another method only if it determines that the petitioner has established by clear and convincing evidence that due to an irregularity, defect, or mistake committed during the voting or canvassing process the results of a recount using automatic tabulating equipment will produce incorrect recount results and that there is a substantial probability that recounting the ballots by hand or another method will produce a more correct result and change the outcome of the election. Nothing in this section affects the right of a candidate or elector aggrieved by the recount to appeal to circuit court under s. 9.01 (6) upon completion of the recount.

5.90 History History: 1979 c. 311; 1987 a. 391; 2005 a. 92, 451; 2007 a. 96; 2013 a. 176; 2015 a. 261.

5.90 Cross-reference Cross-reference: See also ch. EL 7, Wis. adm. code.

5.905 5.905 Software components.

5.905(1) (1) In this section, “software component” includes vote-counting source code, table structures, modules, program narratives and other human-readable computer instructions used to count votes with an electronic voting system.

5.905(2) (2) The commission shall determine which software components of an electronic voting system it considers to be necessary to enable review and verification of the accuracy of the automatic tabulating equipment used to record and tally the votes cast with the system. The commission shall require each vendor of an electronic voting system that is approved under s. 5.91 to place those software components in escrow with the commission within 90 days of the date of approval of the system and within 10 days of the date of any subsequent change in the components. The commission shall secure and maintain those software components in strict confidence except as authorized in this section. Unless authorized under this section, the commission shall withhold access to those software components from any person who requests access under s. 19.35 (1).

5.905(3) (3) The commission shall promulgate rules to ensure the security, review and verification of software components used with each electronic voting system approved by the commission. The verification procedure shall include a determination that the software components correspond to the instructions actually used by the system to count votes.

5.905(4) (4) If a valid petition for a recount is filed under s. 9.01 in an election at which an electronic voting system was used to record and tally the votes cast, each party to the recount may designate one or more persons who are authorized to receive access to the software components that were used to record and tally the votes in the election. The commission shall grant access to the software components to each designated person if, before receiving access, the person enters into a written agreement with the commission that obligates the person to exercise the highest degree of reasonable care to maintain the confidentially of all proprietary information to which the person is provided access, unless otherwise permitted in a contract entered into under sub. (5).

5.905(5) (5) A county or municipality may contract with the vendor of an electronic voting system to permit a greater degree of access to software components used with the system than is required under sub. (4).

5.905 History History: 2005 a. 92; 2015 a. 118 s. 266 (10).

5.91 5.91 Requisites for approval of ballots, devices and equipment. No ballot, voting device, automatic tabulating equipment, or related equipment and materials to be used in an electronic voting system may be utilized in this state unless it is certified by the commission. The commission may revoke its certification of any ballot, device, equipment, or materials at any time for cause. The commission may certify any such voting device, automatic tabulating equipment, or related equipment or materials regardless of whether any such item is approved by the federal election assistance commission, but the commission may not certify any ballot, device, equipment, or material to be used in an electronic voting system unless it fulfills the following requirements:

5.91(1) (1) It enables an elector to vote in secrecy and to select the party for which an elector will vote in secrecy at a partisan primary election.

5.91(3) (3) Except in primary elections, it enables an elector to vote for a ticket selected in part from the nominees of one party, and in part from the nominees of other parties, and in part from independent candidates and in part of candidates whose names are written in by the elector.

5.91(4) (4) It enables an elector to vote for a ticket of his or her own selection for any person for any office for whom he or she may desire to vote whenever write-in votes are permitted.

5.91(5) (5) It accommodates all referenda to be submitted to the electors in the form provided by law.

5.91(6) (6) The voting device or machine permits an elector in a primary election to vote for the candidates of the recognized political party of his or her choice, and the automatic tabulating equipment or machine rejects any ballot on which votes are cast in the primary of more than one recognized political party, except where a party designation is made or where an elector casts write-in votes for candidates of more than one party on a ballot that is distributed to the elector.

5.91(7) (7) It permits an elector to vote at an election for all persons and offices for whom and for which the elector is lawfully entitled to vote; to vote for as many persons for an office as the elector is entitled to vote for; to vote for or against any question upon which the elector is entitled to vote; and it rejects all choices recorded on a ballot for an office or a measure if the number of choices exceeds the number which an elector is entitled to vote for on such office or on such measure, except where an elector casts excess write-in votes upon a ballot that is distributed to the elector.

5.91(8) (8) It permits an elector, at a presidential or gubernatorial election, by one action to vote for the candidates of a party for president and vice president or for governor and lieutenant governor, respectively.

5.91(9) (9) It prevents an elector from voting for the same person more than once for the same office, except where an elector casts excess write-in votes upon a ballot that is distributed to the elector.

5.91(10) (10) It is suitably designed for the purpose used, of durable construction, and is usable safely, securely, efficiently and accurately in the conduct of elections and counting of ballots.

5.91(11) (11) It records correctly and counts accurately every vote properly cast and maintains a cumulative tally of the total votes cast that is retrievable in the event of a power outage, evacuation or malfunction so that the records of votes cast prior to the time that the problem occurs is preserved.

5.91(12) (12) It minimizes the possibility of disenfranchisement of electors as the result of failure to understand the method of operation or utilization or malfunction of the ballot, voting device, automatic tabulating equipment or related equipment or materials.

5.91(13) (13) The automatic tabulating equipment authorized for use in connection with the system includes a mechanism which makes the operator aware of whether the equipment is malfunctioning in such a way that an inaccurate tabulation of the votes could be obtained.

5.91(14) (14) It does not employ any mechanism by which a ballot is punched or punctured to record the votes cast by an elector.

5.91(15) (15) It permits an elector to privately verify the votes selected by the elector before casting his or her ballot.

5.91(16) (16) It provides an elector with the opportunity to change his or her votes and to correct any error or to obtain a replacement for a spoiled ballot prior to casting his or her ballot.

5.91(17) (17) Unless the ballot is counted at a central counting location, it includes a mechanism for notifying an elector who attempts to cast an excess number of votes for a single office that his or her votes for that office will not be counted, and provides the elector with an opportunity to correct his or her ballot or to receive and cast a replacement ballot.

5.91(18) (18) If the device consists of an electronic voting machine, it generates a complete, permanent paper record showing all votes cast by each elector, that is verifiable by the elector, by either visual or nonvisual means as appropriate, before the elector leaves the voting area, and that enables a manual count or recount of each vote cast by the elector.

5.91 History History: 1979 c. 311; 1983 a. 484; 1985 a. 304; 2001 a. 16; 2003 a. 265; 2005 a. 92; 2011 a. 23, 32; 2015 a. 118 s. 266 (10); 2015 a. 261; 2017 a. 365 s. 111.

5.91 Cross-reference Cross-reference: See also ch. EL 7, Wis. adm. code.

5.92 5.92 Bond may be required. Before entering into a contract for the purchase or lease of an electronic voting system or any ballots, voting devices, automatic tabulating equipment or related equipment or materials to be used in connection with a system, any municipality may require the vendor or lessor to provide a performance bond with a licensed surety company as surety, guaranteeing the supply of additional equipment, parts or materials, provision of adequate computer programming, preventive maintenance or emergency repair services, training of election officials and other municipal employees or provision of public educational materials for a specified period, or guaranteeing the security of the computer programs or other equipment or materials to be utilized with the system to prevent election fraud, or such other guarantees as the municipality determines to be appropriate.

5.92 History History: 1979 c. 311.

5.92 Cross-reference Cross-reference: See also ch. EL 7, Wis. adm. code.

5.93 5.93 Administration. The commission shall promulgate reasonable rules for the administration of this subchapter.

5.93 History History: 1979 c. 311; 1985 a. 332 s. 251 (1); 2015 a. 118.

5.93 Cross-reference Cross-reference: See also ch. EL 7, Wis. adm. code.

5.94 5.94 Sample ballots; publication. When an electronic voting system employing a ballot that is distributed to electors is used, the county and municipal clerk of the county and municipality in which the polling place designated for use of the system is located shall cause to be published, in the type B notices, a true actual-size copy of the ballot containing the names of offices and candidates and statements of measures to be voted on, as nearly as possible, in the form in which they will appear on the official ballot on election day. The notice may be published as a newspaper insert. Municipal clerks may post the notice if the remainder of the type B notice is posted.