2023 - 2024 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO ASSEMBLY BILL 892

February 13, 2024 - Offered by Representative Maxey.

AB892-ASA1,1,5 An Act to amend 7.51 (5) (b), 7.53 (1) (a), 7.53 (2) (d), 7.60 (3), 7.60 (5) (a), 7.70 (1) (b), 7.70 (3) (a), 7.70 (3) (c), 7.70 (5) (b), 7.75 (1), 9.01 (1) (ar) 3., 9.01 (6) (a), 9.01 (6) (b), 9.01 (7) (b) and 9.01 (9) (a); and to create 7.70 (3) (cm), 9.01 (1) (ar) 4., 9.01 (6) (am), 9.01 (9) (am) and 9.01 (9) (cm) of the statutes; relating to: compliance with the federal Electoral Count Reform Act.

Analysis by the Legislative Reference Bureau

Under the federal Electoral Count Reform Act, states should ensure that their canvass, recount, and any precertification procedures are completed within a 36-day period from the date of a presidential election to the date in which a state certifies its presidential election results. This bill makes the following changes to Wisconsin election laws in order to comply with deadlines established by the ECRA for selecting presidential electors and transmitting election results to Congress:

1. Current law does not include a state deadline for certification of a presidential election. The bill requires the governor to transmit a certificate of the election results to the archivist of the United States no later than six days before the meeting of the state's presidential electors.

2. Current law requires the governor to deliver six duplicate originals of the certificate described above to one of the state's presidential electors on or before the first Monday after the second Wednesday in December. The bill changes the deadline for delivering the certificate to the first Tuesday after the second Wednesday in December.

3. Current law requires the electors for president and vice president to meet at the state capitol at noon on the first Monday after the second Wednesday in December. The bill requires the electors to meet on the first Tuesday after the second Wednesday in December.

4. Current law requires the Elections Commission chairperson to complete the state canvass of election results within 10 days from the day on which it commences and, for a general election, no later than December 1 following the election. With regard to a presidential election, the bill requires that commission chairperson to complete the state canvass no later than 16 days after the election.

5. Under current law, when the Elections Commission receives a valid petition for a recount, it must promptly order the proper county board of canvassers to commence the recount. The order must be sent by certified mail or by “other expeditious means,” and the county board of canvassers must commence the recount no later than 9 a.m. on the third day after receiving the order. With regard to a presidential election, the bill requires that the order be sent immediately, on the same day on which the commission receives the petition, and by email or other electronic transmission. In addition, the board of canvassers must commence a recount no later than 9 a.m. on the second day after receiving an order and may not adjourn until the recount is complete in the county, except to the extent permitted by the commission.

6. Under current law, a candidate may file an appeal of the recount results with the circuit court within five business days after the recount is completed. With regard to a presidential election, the bill shortens that deadline to one business day. The bill also requires the court to make a determination on the appeal no later than 10 days after the day on which the appeal is filed rather than “as expeditiously as possible,” as provided under current law.

7. With regard to a recount, current law allows a candidate aggrieved by an order of the circuit court to file an appeal with the court of appeals within 30 days after the circuit court's order. Under the bill, with regard to a presidential election recount, a candidate who wishes to appeal a circuit court order must file his or her appeal with the Wisconsin Supreme Court. The bill requires a candidate to file his or her appeal no later than the day after the circuit court issues its order. The bill also requires the supreme court to resolve such appeals as soon as possible and directs the governor to update the certificate of the election results pursuant to an order of the supreme court, if the court issues the order no later than the day before the date on which the presidential electors are to convene.

8. Finally, the bill adjusts municipal and county canvassing deadlines with regard to a presidential election in order to conform with the other changes made by the bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB892-ASA1,1 Section 1. 7.51 (5) (b) of the statutes is amended to read:

AB892-ASA1,3,18 7.51 (5) (b) The municipal clerk shall deliver all ballots, statements, tally sheets, lists, and envelopes relating to a school district election to the school district clerk, excluding any provisional ballots, by 4 p.m. on the day following each such election and shall deliver to the school district clerk any amended statements, tally sheets, and lists for additional provisional ballots canvassed under s. 6.97 (4) no later than 4 p.m. on the Monday after the election. The municipal clerk shall deliver to the county clerk the ballots, statements, tally sheets, lists, and envelopes for his or her municipality relating to any county, technical college district, state, or national election no later than 4 p.m. on the day following each such election or, in municipalities where absentee ballots are canvassed under s. 7.52, by 4 p.m. on the 2nd day following each such election, and shall deliver to the county clerk any additional provisional ballots canvassed under s. 6.97 (4) together with amended statements, tally sheets, lists, and envelopes no later than 4 p.m. on the Monday after the election or, for a presidential election, no later than 4 p.m. on the Friday after the election. The person delivering the returns shall be paid out of the municipal treasury. Each clerk shall retain ballots, statements, tally sheets, or envelopes received by the clerk until destruction is authorized under s. 7.23 (1).

AB892-ASA1,2 Section 2. 7.53 (1) (a) of the statutes is amended to read:

AB892-ASA1,5,6 7.53 (1) (a) Where the municipality constitutes one ward or combines all wards to utilize a single polling place under s. 5.15 (6) (b), the canvass of the votes cast at the polling place shall be conducted publicly under s. 7.51 and the inspectors, other than any inspector appointed under s. 7.30 (1) (b), shall act as the municipal board of canvassers. The inspectors shall then complete the return statement for all votes cast at the polling place. If there are no provisional ballots that are eligible to be counted under s. 6.97 and no absentee ballots are being canvassed under s. 7.52, the inspectors may complete and sign the canvass statement and determination on election night. In municipalities where absentee ballots are canvassed under s. 7.52, after the canvass of the absentee ballots is completed under s. 7.52, the board of absentee ballot canvassers shall reconcile the poll list of the electors who vote by absentee ballot with the corresponding poll list of the electors who vote in person to ensure that no elector is allowed to cast more than one ballot. If an elector who votes in person has submitted an absentee ballot, the absentee ballot is void. Except as authorized in par. (b), if one or more electors of the municipality have cast provisional ballots that are eligible to be counted under s. 6.97, the inspectors, acting as the board of canvassers, shall reconvene no later than 9 a.m. on the Monday after the election, or no later than 4 p.m. on the Friday after a presidential election, to count the valid provisional ballots and shall adjust the returns accordingly. The inspectors, acting as the board of canvassers, need not reconvene if the municipal clerk certifies that he or she has received no provisional ballots from the time that the board of canvassers completed the initial canvass and 4 p.m. on the Friday after the election. Upon completion of the canvass under this paragraph and any canvass that is conducted under s. 7.52 and ascertainment of the results by the inspectors or, in municipalities where absentee ballots are canvassed under s. 7.52, by the inspectors and the board of absentee ballot canvassers, the municipal clerk shall publicly read to the inspectors or the board of absentee ballot canvassers the names of the persons voted for and the number of votes for each person for each municipal office, the names of the persons declared by the inspectors or board of absentee ballot canvassers to have won nomination or election to each municipal office, and the number of votes cast for and against each municipal referendum question.

AB892-ASA1,3 Section 3. 7.53 (2) (d) of the statutes is amended to read:

AB892-ASA1,6,4 7.53 (2) (d) In municipalities with one polling place, the canvass shall be conducted under sub. (1) publicly on election night. In other municipalities, the municipal board of canvassers shall publicly canvass the returns of every election. The canvass shall begin no earlier than the time that the municipal board of canvassers receives the returns from all polling places in the municipality on election night and no later than 9 a.m. on the Monday after the election, except that, for a presidential election, the canvass shall begin no later than 4 p.m. on the Friday after the election. After any canvass of the absentee ballots is completed under s. 7.52, the board of canvassers shall reconcile the poll list of the electors who vote by absentee ballot with the corresponding poll list of the electors who vote in person to ensure that no elector is allowed to cast more than one ballot. If an elector who votes in person has submitted an absentee ballot, the absentee ballot is void. At the spring election, the board of canvassers shall publicly declare the results on or before the 3rd Tuesday in April. The board of canvassers shall prepare a statement showing the results of each election for any municipal office and each municipal referendum. After each primary for municipal offices, the board of canvassers shall prepare a statement certifying the names of those persons who have won nomination to office. After each other election for a municipal office and each municipal referendum, the board of canvassers shall prepare a determination showing the names of the persons who are elected to each municipal office and the results of each municipal referendum. The board of canvassers shall file each statement and determination in the office of the municipal clerk or board of election commissioners.

AB892-ASA1,4 Section 4. 7.60 (3) of the statutes is amended to read:

AB892-ASA1,6,23 7.60 (3) Canvassing. Not later than 9 a.m. on the Tuesday after each election the county board of canvassers shall open and publicly examine the returns, except that, for a presidential election, the board of canvassers shall open and publicly examine the returns not later than noon on the Saturday after the election. If returns have not been received from any election district or ward in the county, they shall dispatch a messenger and the person having them shall deliver the returns to the messenger. If, on examination, any of the returns received are so informal or defective that the board cannot intelligently canvass them, they shall dispatch a messenger to deliver the returns back to the municipal board of canvassers with written specifications of the informalities or defects and command them to immediately complete the returns or remedy the defects in the manner required and deliver them to the messenger. Every messenger shall safely keep all returns, show them to no one but the municipal clerk and board of canvassers and deliver them to the county clerk with all possible dispatch. To acquire the necessary full returns and remedy any informalities or defects the county board of canvassers may adjourn not longer than one day at a time nor more than 2 days in all, except that, for a presidential election, the board of canvassers may adjourn only to the extent permitted by the commission.