Chapter 9

9.01(6) (6) Appeal to circuit court.

9.01(6)(a) (a) Within 5 business days after completion of the recount determination by the board of canvassers in all counties concerned, or within 5 business days after completion of the recount determination by the commission chairperson or the chairperson’s designee whenever a determination is made by the chairperson or designee, any candidate, or any elector when for a referendum, aggrieved by the recount may appeal to circuit court. The appeal shall commence by serving a written notice of appeal on the other candidates and persons who filed a written notice of appearance before each board of canvassers whose decision is appealed, or in the case of a statewide recount, before the commission chairperson or the chairperson’s designee. The appellant shall also serve notice on the commission if the commission chairperson or the chairperson’s designee is responsible for determining the election. The appellant shall serve the notice by certified mail or in person. The appellant shall file the notice with the clerk of circuit court together with an undertaking and surety in the amount approved by the court, conditioned upon the payment of all costs taxed against the appellant.

9.01(6)(b) (b) If an appeal is filed from a recount determination in an election which is held in more than one judicial circuit, the chief judge of the judicial administrative district in which the election is held shall consolidate all appeals relating to that election and appoint a circuit judge, who shall be a reserve judge if available, to hear the appeal. If the election is held in more than one judicial administrative district, the chief justice of the supreme court shall make the appointment.

9.01(7) (7) Court procedures.

9.01(7)(a) (a) The court with whom an appeal is filed shall forthwith issue an order directing each affected county, municipal clerk, or board, and the commission, to transmit immediately all ballots, papers and records affecting the appeal to the clerk of court or to impound and secure such ballots, papers and records, or both. The order shall be served upon each affected county, municipal clerk, or board, the commission, and all other candidates and persons who filed a written notice of appearance before any board of canvassers involved in the recount.

9.01(7)(b) (b) The appeal shall be heard by a judge without a jury. Promptly following the filing of an appeal, the court shall hold a scheduling conference for the purpose of adopting procedures that will permit the court to determine the matter as expeditiously as possible. Within the time ordered by the court, the appellant shall file a complaint enumerating with specificity every alleged irregularity, defect, mistake or fraud committed during the recount. The appellant shall file a copy of the complaint with each person who is entitled to receive a copy of the order under par. (a). Within the time ordered by the court, the other parties to the appeal shall file an answer. Within the time ordered by the court, the parties to the appeal shall provide the court with any other information ordered by the court. At the time and place ordered by the court, the matter shall be summarily heard and determined and costs shall be taxed as in other civil actions. Those provisions of chs. 801 to 806 which are inconsistent with a prompt and expeditious hearing do not apply to appeals under this section.

9.01(8) (8) Scope of review.

9.01(8)(a) (a) Unless the court finds a ground for setting aside or modifying the determination of the board of canvassers or the commission chairperson or chairperson’s designee, it shall affirm the determination.

9.01(8)(b) (b) The court shall separately treat disputed issues of procedure, interpretations of law, and findings of fact.

9.01(8)(c) (c) The court may not receive evidence not offered to the board of canvassers or the commission chairperson or the chairperson’s designee except for evidence that was unavailable to a party exercising due diligence at the time of the recount or newly discovered evidence that could not with due diligence have been obtained during the recount, and except that the court may receive evidence not offered at an earlier time because a party was not represented by counsel in all or part of a recount proceeding. A party who fails to object or fails to offer evidence of a defect or irregularity during the recount waives the right to object or offer evidence before the court except in the case of evidence that was unavailable to a party exercising due diligence at the time of the recount or newly discovered evidence that could not with due diligence have been obtained during the recount or evidence received by the court due to unavailability of counsel during the recount.

9.01(8)(d) (d) The court shall set aside or modify the determination of the board of canvassers or the commission chairperson or the chairperson’s designee if it finds that the board of canvassers or the chairperson or chairperson’s designee has erroneously interpreted a provision of law and a correct interpretation compels a particular action. If the determination depends on any fact found by the board of canvassers or the commission chairperson or the chairperson’s designee, the court may not substitute its judgment for that of the board of canvassers or the chairperson or designee as to the weight of the evidence on any disputed finding of fact. The court shall set aside the determination if it finds that the determination depends on any finding of fact that is not supported by substantial evidence.

9.01(9) (9) Appeal to court of appeals.

9.01(9)(a) (a) Within 30 days after entry of the order of the circuit court, a party aggrieved by the order may appeal to the court of appeals.

9.01(9)(b) (b) If an appeal is filed in respect to an election which is held in more than one court of appeals district, the chief justice of the supreme court shall consolidate all appeals relating to that election and designate one district to hear the appeal, except that if an appeal is filed in respect to an election for statewide office or a statewide referendum, the appeal shall be heard by the 4th district court of appeals.

9.01(9)(c) (c) The court of appeals shall give precedence to the appeal over other matters not accorded similar precedence by law.

9.01(10) (10) Standard forms and methods. The commission shall prescribe standard forms and procedures for the making of recounts under this section. The procedures prescribed by the commission shall require the boards of canvassers in recounts involving more than one board of canvassers to consult with the commission staff prior to beginning any recount in order to ensure that uniform procedures are used, to the extent practicable, in such recounts.

9.01(11) (11) Exclusive remedy. This section constitutes the exclusive judicial remedy for testing the right to hold an elective office as the result of an alleged irregularity, defect or mistake committed during the voting or canvassing process.

9.01 History History: 1971 c. 251; 1971 c. 304 s. 29 (2); 1971 c. 336; 1973 c. 313; 1973 c. 334 ss. 23 to 26, 57; 1975 c. 41, 422; 1977 c. 394 s. 53; 1977 c. 427; 1979 c. 200; 1979 c. 260 ss. 66 to 68, 93; 1979 c. 311, 355; 1983 a. 183; 1983 a. 484 s. 172 (3); 1983 a. 538; 1985 a. 304; 1987 a. 391; 1989 a. 192; 1993 a. 213; 1997 a. 27; 1999 a. 49, 182; 2001 a. 16; 2003 a. 265, 321; 2005 a. 149, 451; 2007 a. 1, 96; 2011 a. 75, 115; 2015 a. 36, 117; 2015 a. 118 ss. 107 to 119, 266 (10); 2015 a. 261; 2017 a. 120, 366.

9.01 Cross-reference Cross-reference: See also s. EL 6.04, Wis. adm. code.

9.01 Annotation A challenge of compliance with procedures for absent voting is within the board of canvassers’ jurisdiction. Absent connivance, fraud, or undue influence, substantial compliance with statutory voting procedures is sufficient. Johnson v. Hayden, 105 Wis. 2d 468, 313 N.W.2d 869 (Ct. App. 1981).

9.01 Annotation Sub. (8) does not require the party against whom the board of canvassers rules to object to the board’s determination to preserve the issue for judicial review. Clifford v. School District, 143 Wis. 2d 581, 421 N.W.2d 852 (Ct. App. 1988).

9.01 Annotation Post-election eligibility challenges are properly brought under this section. Logerquist v. Board of Canvassers, 150 Wis. 2d 907, 442 N.W.2d 551 (Ct. App. 1989).

9.01 Annotation The recount statute does not violate due process or equal protection and does not deny the electorate the right to have the winning candidate hold office. Discussing the relationship of recount and quo warranto actions. State ex rel. Shroble v. Prusener, 185 Wis. 2d 102, 517 N.W.2d 169 (1994).

9.01 Annotation When the board of canvassers’ actions in a recount reflected proper application of the statutes, the reviewing court’s finding that the board had another option available to it was immaterial. De Broux v. Board of Canvassers, 206 Wis. 2d 321, 557 N.W.2d 423 (Ct. App. 1996), 96-1287.

9.01 Annotation This section is the exclusive remedy for any claimed election fraud or irregularity. Generally, to successfully challenge an election, the challenger must show the probability of an altered outcome in the absence of the challenged irregularity. Carlson v. Oconto County Board of Canvassers, 2001 WI App 20, 240 Wis. 2d 438, 623 N.W.2d 195, 00-1788.

9.01 Annotation A party’s failure to timely file an appeal under sub. (6) does not preclude the party from later intervening in another’s appeal. To appeal under sub. (6) requires a party to be aggrieved. A party advocating a position that prevailed is not aggrieved. Roth v. LaFarge School District Board of Canvassers, 2001 WI App 221, 247 Wis. 2d 708, 634 N.W.2d 882, 01-0160.

9.01 Annotation The sub. (6) (a) requirement that a vote-recount appeal to the circuit court be served on the other candidates is fundamental. That a candidate who was not served knew about the appeal and sought and was permitted to intervene in an appeal of a recount was immaterial to the validity of that appeal. The command that “other candidates” be served with the appeal is mandatory rather than directory. Logic v. City of South Milwaukee Board of Canvassers, 2004 WI App 219, 277 Wis. 2d 421, 689 N.W.2d 692, 04-1642.

9.10 9.10 Recall.

9.10(1) (1) Right to recall; petition signatures.

9.10(1)(a) (a) The qualified electors of the state, of any county, city, village, or town, of any congressional, legislative, judicial, town sanitary, or school district, or of any prosecutorial unit may petition for the recall of any incumbent elective official by filing a petition with the same official or agency with whom nomination papers or declarations of candidacy for the office are filed demanding the recall of the officeholder.

9.10(1)(b) (b) Except as provided in par. (c), a petition for recall of an officer shall be signed by electors equal to at least 25 percent of the vote cast for the office of governor at the last election within the same district or territory as that of the officeholder being recalled.

9.10(1)(c) (c) If no statistics are available to calculate the required number of signatures on a petition for recall of an officer, the number of signatures shall be determined as follows:

9.10(1)(c)1. 1. The area of the district in square miles shall be divided by the area of the municipality in square miles in which it lies.

9.10(1)(c)2. 2. The vote for governor at the last general election in the municipality within which the district lies shall be multiplied by 25 percent of the quotient determined under subd. 1. to determine the required number of signatures.

9.10(1)(c)3. 3. If a district is in more than one municipality, the method of determination under subds. 1. and 2. shall be used for each part of the district which constitutes only a fractional part of any area for which election statistics are kept.

9.10(1)(d) (d) The official or agency with whom declarations of candidacy are filed for each office shall determine and certify to any interested person the number of signatures required on a recall petition for that office.

9.10(2) (2) Petition requirements.

9.10(2)(a) (a) Every recall petition shall have on the face at the top in bold print the words “RECALL PETITION”. Other requirements as to preparation and form of the petition shall be governed by s. 8.40.

9.10(2)(b) (b) A recall petition for a city, village, town, town sanitary district, or school district office shall contain a statement of a reason for the recall which is related to the official responsibilities of the official for whom removal is sought.

9.10(2)(c) (c) A petition requesting the recall of each elected officer shall be prepared and filed separately.

9.10(2)(d) (d) No petition may be offered for filing for the recall of an officer unless the petitioner first files a registration statement under s. 11.0902 with the filing officer with whom the petition is filed. The petitioner shall append to the registration a statement indicating his or her intent to circulate a recall petition, the name of the officer for whom recall is sought and, in the case of a petition for the recall of a city, village, town, town sanitary district, or school district officer, a statement of a reason for the recall which is related to the official responsibilities of the official for whom removal is sought. No petitioner may circulate a petition for the recall of an officer prior to completing registration. The last date that a petition for the recall of an officer may be offered for filing is 5 p.m. on the 60th day commencing after registration. After the recall petition has been offered for filing, no name may be added or removed. No signature may be counted unless the date of the signature is within the period provided in this paragraph.

9.10(2)(e) (e) An individual signature on a petition sheet may not be counted if:

9.10(2)(e)1. 1. The signature is not dated.

9.10(2)(e)2. 2. The signature is dated outside the circulation period.

9.10(2)(e)3. 3. The signature is dated after the date of the certification contained on the petition sheet.

9.10(2)(e)4. 4. The residency of the signer of the petition sheet cannot be determined by the address given.

9.10(2)(e)5. 5. The signature is that of an individual who is not a resident of the jurisdiction or district from which the elective official being recalled is elected.

9.10(2)(e)6. 6. The signer has been adjudicated not to be a qualified elector on grounds of incompetency or limited incompetency as provided in s. 6.03 (3).

9.10(2)(e)7. 7. The signer is not a qualified elector by reason of age.

9.10(2)(e)8. 8. The circulator knew or should have known that the signer, for any other reason, was not a qualified elector.

9.10(2)(em) (em) No signature on a petition sheet may be counted if:

9.10(2)(em)1. 1. The circulator fails to sign the certification of circulator.

9.10(2)(em)2. 2. The circulator is not a qualified circulator.

9.10(2)(f) (f) The filing officer or agency shall review a verified challenge to a recall petition if it is made prior to certification.

9.10(2)(g) (g) The burden of proof for any challenge rests with the individual bringing the challenge.

9.10(2)(h) (h) Any challenge to the validity of signatures on the petition shall be presented by affidavit or other supporting evidence demonstrating a failure to comply with statutory requirements.

9.10(2)(i) (i) If a challenger can establish that a person signed the recall petition more than once, the 2nd and subsequent signatures may not be counted.

9.10(2)(j) (j) If a challenger demonstrates that someone other than the elector signed for the elector, the signature may not be counted, unless the elector is unable to sign due to physical disability and authorized another individual to sign in his or her behalf.

9.10(2)(k) (k) If a challenger demonstrates that the date of a signature is altered and the alteration changes the validity of the signature, the signature may not be counted.

9.10(2)(L) (L) If a challenger establishes that an individual is ineligible to sign the petition, the signature may not be counted.

9.10(2)(m) (m) No signature may be stricken on the basis that the elector was not aware of the purpose of the petition, unless the purpose was misrepresented by the circulator.

9.10(2)(n) (n) No signature may be stricken if the circulator fails to date the certification of circulator.

9.10(2)(p) (p) If a signature on a petition sheet is crossed out by the petitioner before the sheet is offered for filing, the elimination of the signature does not affect the validity of other signatures on the petition sheet.

9.10(2)(q) (q) Challenges are not limited to the categories set forth in pars. (i) to (L).

9.10(2)(r) (r) A petitioner may file affidavits or other proof correcting insufficiencies, including but not limited to:

9.10(2)(r)4. 4. Failure of the circulator to sign the certification of circulator.

9.10(2)(r)5. 5. Failure of the circulator to include all necessary information.

9.10(2)(s) (s) No petition for recall of an officer may be offered for filing prior to the expiration of one year after commencement of the term of office for which the officer is elected.

9.10(3) (3) State, county, congressional, legislative and judicial offices.

9.10(3)(a) (a) This subsection applies to the recall of all elective officials other than city, village, town, town sanitary district, and school district officials. City, village, town, town sanitary district, and school district officials are recalled under sub. (4).

9.10(3)(b) (b) Within 10 days after the petition is offered for filing, the officer against whom the petition is filed may file a written challenge with the official, specifying any alleged insufficiency. If a challenge is filed, the petitioner may file a written rebuttal to the challenge with the official within 5 days after the challenge is filed. If a rebuttal is filed, the officer against whom the petition is filed may file a reply to any new matter raised in the rebuttal within 2 days after the rebuttal is filed. Within 14 days after the expiration of the time allowed for filing a reply to a rebuttal, the official shall file the certificate or an amended certificate. Within 31 days after the petition is offered for filing, the official with whom the petition is offered for filing shall determine by careful examination whether the petition on its face is sufficient and so state in a certificate attached to the petition. If the official finds that the amended petition is sufficient, the official shall file the petition and call a recall election to be held on the Tuesday of the 6th week commencing after the date of filing of the petition. If Tuesday is a legal holiday, the recall election shall be held on the first day after Tuesday which is not a legal holiday. If the official finds that the petition is insufficient, the certificate shall state the particulars creating the insufficiency. The petition may be amended to correct any insufficiency within 5 days following the affixing of the original certificate. Within 5 days after the offering of the amended petition for filing, the official with whom the petition is filed shall again carefully examine the face of the petition to determine sufficiency and shall attach a certificate stating the findings. Upon showing of good cause, the circuit court for the county in which the petition is offered for filing may grant an extension of any of the time periods provided in this paragraph.

9.10(3)(bm) (bm) Within 7 days after an official makes a final determination of sufficiency or insufficiency of a recall petition under par. (b), the petitioner or the officer against whom the recall petition is filed may file a petition for a writ of mandamus or prohibition with the circuit court for the county where the recall petition is offered for filing. Upon filing of such a petition, the only matter before the court shall be whether the recall petition is sufficient. The court may stay the effect of the official’s order while the petition is under advisement and may order the official to revise the election schedule contained in the order if a revised schedule is necessitated by judicial review. Whenever the recall petitioner files a petition under this paragraph, the officer against whom the recall petition is filed shall be a party to the proceeding. The court shall give the matter precedence over other matters not accorded similar precedence by law.

9.10(3)(c) (c) The official against whom the recall petition is filed shall be a candidate at the recall election without nomination unless the official resigns within 10 days after the original filing of the petition. Candidates for the office may be nominated under the usual procedure of nomination for a special election by filing nomination papers not later than 5 p.m. on the 4th Tuesday preceding the election and have their names placed on the ballot at the recall election.

9.10(3)(d) (d) If more than 2 persons compete for a nonpartisan office, a recall primary shall be held. The names of the 2 persons receiving the highest number of votes in the recall primary shall be certified to appear on the ballot in the recall election, but if any person receives a majority of the total number of votes cast in the recall primary, a recall election shall not be held. If the incumbent receives a majority of the votes cast, the incumbent shall be retained in office for the remainder of the term. If another candidate receives a majority of the votes cast, that candidate shall be elected to serve for the residue of the unexpired term of the incumbent. Write-in votes are permitted only at a recall primary or at a recall election in which no primary is held.

9.10(3)(e) (e) For any partisan office, a recall primary shall be held for each political party which is entitled to a separate ballot under s. 5.62 (1) (b) or (2) and from which more than one candidate competes for the party’s nomination in the recall election. The primary ballot shall be prepared in accordance with s. 5.62, insofar as applicable. The person receiving the highest number of votes in the recall primary for each political party shall be that party’s candidate in the recall election. Independent candidates shall be shown on the ballot for the recall election only.

9.10(3)(f) (f) If a recall primary is required, the date specified under par. (b) shall be the date of the recall primary and the recall election shall be held on the Tuesday of the 4th week commencing after the recall primary or, if that Tuesday is a legal holiday, on the first day after that Tuesday which is not a legal holiday.

9.10(4) (4) City, village, town, town sanitary district, and school district offices.

9.10(4)(a) (a) Within 10 days after a petition for the recall of a city, village, town, town sanitary district, or school district official, is offered for filing, the officer against whom the petition is filed may file a written challenge with the municipal clerk or board of election commissioners or school district clerk with whom it is filed, specifying any alleged insufficiency. If a challenge is filed, the petitioner may file a written rebuttal to the challenge with the clerk or board of election commissioners within 5 days after the challenge is filed. If a rebuttal is filed, the officer against whom the petition is filed may file a reply to any new matter raised in the rebuttal within 2 days after the rebuttal is filed. Within 14 days after the expiration of the time allowed for filing a reply to a rebuttal, the clerk or board of election commissioners shall file the certificate or an amended certificate. Within 31 days after the petition is offered for filing, the clerk or board of election commissioners shall determine by careful examination of the face of the petition whether the petition is sufficient and shall so state in a certificate attached to the petition. If the petition is found to be insufficient, the certificate shall state the particulars creating the insufficiency. The petition may be amended to correct any insufficiency within 5 days following the affixing of the original certificate. Within 2 days after the offering of the amended petition for filing, the clerk or board of election commissioners shall again carefully examine the face of the petition to determine sufficiency and shall attach to the petition a certificate stating the findings. Immediately upon finding an original or amended petition sufficient, except in cities over 500,000 population, the municipal clerk or school district clerk shall transmit the petition to the governing body or to the school board. Immediately upon finding an original or amended petition sufficient, in cities over 500,000 population, the board of election commissioners shall file the petition in its office.

9.10(4)(d) (d) Promptly upon receipt of a certificate under par. (a), the governing body, school board, or board of election commissioners shall call a recall election. The recall election shall be held on the Tuesday of the 6th week commencing after the date on which the certificate is filed, except that if Tuesday is a legal holiday the recall election shall be held on the first day after Tuesday which is not a legal holiday.

9.10(4)(e) (e) The official against whom the recall petition is filed shall be a candidate at the recall election without nomination unless the official resigns within 10 days after the date of the certificate. Candidates for the office may be nominated under the usual procedure of nomination for a special election by filing nomination papers or declarations of candidacy not later than 5 p.m. on the 4th Tuesday preceding the election and have their names placed on the ballot at the recall election.

9.10(4)(f) (f) If more than 2 persons compete for an office, a recall primary shall be held. The names of the 2 persons receiving the highest number of votes in the recall primary shall be certified to appear on the ballot in the recall election, but if any person receives a majority of the total number of votes cast in the recall primary, a recall election shall not be held. If the incumbent receives a majority of the votes cast, the incumbent shall be retained in office for the remainder of the term. If another candidate receives a majority of the votes cast, that candidate shall be elected to serve for the residue of the unexpired term of the incumbent. Write-in votes are permitted only at a recall primary or at a recall election in which no primary is held.

9.10(4)(g) (g) If a recall primary is required, the date specified under par. (d) shall be the date of the recall primary and the recall election shall be held on the Tuesday of the 4th week commencing after the recall primary or, if that Tuesday is a legal holiday, on the first day after that Tuesday which is not a legal holiday.

9.10(4)(h) (h) All candidates for any village, town, and town sanitary district office, other than the official against whom the recall petition is filed, shall file nomination papers, regardless of the method of nomination of candidates for town or village office under s. 8.05.

9.10(5) (5) Voting method; election results.

9.10(5)(a) (a) The recall primary or election of more than one official may be held on the same day. If more than one official of the same office designation elected at large for the same term from the same district or territory is the subject of a recall petition, there shall be a separate election contest for the position held by each official. Candidates shall designate which position they are seeking on their nomination papers. Instructions shall appear on the ballot to electors to vote for each position separately.

9.10(5)(b) (b) The official against whom a recall petition has been filed shall continue to perform the duties of his or her office until a certificate of election is issued to his or her successor. The person receiving a plurality of votes at the recall election or a majority of votes at a primary when authorized under sub. (3) (d) or (4) (f) shall be declared elected for the remainder of the term. If the incumbent receives the required number of votes he or she shall continue in office. Except as provided in sub. (4) (f), if another person receives the required number of votes that person shall succeed the incumbent if he or she qualifies within 10 days after receiving a certificate of election.

9.10(6) (6) Limitation on recall elections. After one recall petition and recall election, no further recall petition may be filed against the same official during the term for which he or she was elected.

9.10(7) (7) Purpose. The purpose of this section is to facilitate the operation of article XIII, section 12, of the constitution and to extend the same rights to electors of cities, villages, towns, town sanitary districts, and school districts.

9.10 History History: 1977 c. 187 s. 134; 1977 c. 403, 447; 1979 c. 260; 1983 a. 219, 491, 538; 1985 a. 304; 1987 a. 391; 1989 a. 31, 192; 1991 a. 269, 315; 1999 a. 182; 2001 a. 109; 2005 a. 451; 2007 a. 56; 2015 a. 117.