2023 - 2024 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 1,
TO SENATE BILL 685
November 15, 2023 - Offered by Senator Cabral-Guevara.
SB685-SSA1,1,8
1An Act to repeal 5.85 (5), 5.86 and 7.03 (1) (c);
to renumber and amend 7.52
2(1) (a);
to amend 5.05 (12), 5.84 (1), 5.84 (2), 5.85 (1), 5.87 (1), 5.91 (17), 6.15
3(4) (a), 6.15 (4) (b), 6.33 (1), 6.86 (1) (b), 6.87 (6), 6.88 (1), 6.88 (2), 7.37 (12), 7.51
4(1), 7.52 (2), 7.52 (3) (a), 7.52 (4) (a), 7.52 (9), 12.60 (1) (a) and 54.25 (2) (c) 1. g.;
5and
to create 5.057, 6.88 (4), 7.15 (16), 7.52 (1) (d) to (h), 7.52 (10) and 7.52 (11)
6of the statutes;
relating to: canvassing absentee ballots, use of central
7counting locations, election night reporting, court determinations of
8incompetency and ineligibility to vote, and providing a penalty.
Analysis by the Legislative Reference Bureau
Early canvassing of absentee ballots
Under current law, absentee ballots may not be canvassed until election day.
Current law additionally provides that any municipality may provide by ordinance
that, in lieu of canvassing absentee ballots at polling places, a municipal board of
absentee ballot canvassers established by the municipality is responsible for
canvassing all absentee ballots received by the municipal clerk by 8 p.m. on election
day. In such a municipality, the board of absentee ballot canvassers is required to
convene a meeting any time after the polls open and before 10 p.m. on election day
to canvass the absentee ballots cast in the municipality in the election. Among the
requirements governing such a meeting, any member of the public has the same right
of access to the meeting that the individual would have to observe the canvassing of
absentee ballots at a polling place.
This bill does all of the following:
1. Requires the municipal board of absentee ballot canvassers in a municipality
having an ordinance described above to begin canvassing absentee ballots on the day
before an election. Canvassing absentee ballots on the day before the election is
optional except for each spring and general election and each special election or recall
election if the special or recall election is for a state or national office.
2. Provides that the board of absentee ballot canvassers must publicly convene
no earlier than 7 a.m. on the day before the election to begin the canvass of absentee
ballots for the municipality and recess at 8 p.m. on that day.
3. Requires that at 8 p.m. on the day before the election, and at 7 a.m., noon,
and 8 p.m. on election day, the municipal clerk or his or her designee or the municipal
board of election commissioners must provide to the county clerk or county board of
election commissioners of the county in which the municipality is located a statement
that shows the total number of absentee ballots returned to the municipality and the
total number of absentee ballots the municipal board of absentee ballot canvassers
has canvassed. The county clerk or county board of election commissioners must
promptly post each statement on the website on which returns for the county are
posted on election night. In a municipality having a municipal board of election
commissioners (currently, only the city of Milwaukee), the municipal board of
election commissioners must also post the statement on the website maintained by
the municipal board of election commissioners. The statement may not include the
names or addresses of any electors. An absentee ballot is considered canvassed for
purposes of this reporting requirement only after all tasks have been completed in
the canvassing process except for the tallying of votes.
4. Requires that when the meeting of the board of absentee ballot canvassers
recesses on the day before the election, the board must secure the automatic
tabulating equipment, and the areas where the programmed media, memory
devices, and absentee ballots are housed, with tamper-evident security seals in a
double-lock location such as a locked cabinet inside a locked office. Before resuming
the canvassing of absentee ballots, the board must check and record the status of
each tamper-evident seal and must immediately notify the Elections Commission
of any evidence of tampering. If the board discovers evidence of tampering with
respect to automatic tabulating equipment, the canvass may not resume until the
equipment is replaced and the replacement equipment is tested. Also, if the board
discovers evidence of tampering, the Elections Commission must verify the accuracy
of the absentee ballot count by ordering the municipality to conduct a recount after
the election and conducting an audit of the election equipment.
5. Provides that votes on absentee ballots canvassed early under the bill may
not be tallied until after the polls close on election day.
6. Provides that no person may act in a manner that would give him or her the
ability to know or to provide information on the tallied results from the ballots
canvassed under the bill before the polls close on election day. Whoever intentionally
violates that prohibition is guilty of a Class I felony, the penalty for which is a fine
not to exceed $10,000 or imprisonment not to exceed three years and six months, or
both.
7. Authorizes municipalities not having a board of absentee ballot canvassers
to begin processing absentee ballots beginning no earlier than 7 a.m. on the day
before the election subject to some of the requirements described above. In order to
canvass absentee ballots early, such a municipality must provide by ordinance that
absentee ballots received by the municipal clerk may be canvassed on the day before
the election. Prior to enacting the ordinance, the municipal clerk must notify the
Elections Commission in writing of the proposed ordinance and must consult with
the Elections Commission concerning the early canvassing of absentee ballots.
Finally, under current law, criminal penalties are provided for election officials
who commit certain specified kinds of election fraud. Otherwise, the willful neglect
or refusal of an election official to perform a duty prescribed under the election laws
is punishable by disqualification to act as an election official for five years. Under
the bill, a member of the municipal board of absentee ballot canvassers or other
election official who willfully neglects or refuses to perform any of the duties
prescribed under the bill, and other duties prescribed under current law, with respect
to the canvassing of absentee ballots by a municipal board of absentee ballot
canvassers is guilty of a Class I felony.
Use of central counting locations
Under current law, votes are canvassed at the polling place after polls close on
election day, except that any municipality where an electronic voting system is used
may elect to adjourn the canvass to a central counting location where votes cast at
multiple polling places in the municipality may all be counted after the polls close
on election day. The bill eliminates the option for municipalities to use such central
counting locations.
Election night reporting
Under the bill, at 10 p.m. on election night, and every hour thereafter until the
canvass is complete, each municipal clerk or his or her designee must provide to the
county clerk of the county in which the municipality is located a statement that
shows the total number of ballots, including absentee ballots, cast at the
municipality in the election, the total number of ballots, including absentee ballots,
that have been canvassed, and the total number of ballots, including absentee
ballots, that remain to be canvassed. The county clerk must promptly post each
statement on the website on which the county clerk posts returns on election night.
In a municipality having a municipal board of election commissioners (currently,
only the city of Milwaukee), the municipal board of election commissioners must also
post the statement on the website maintained by the municipal board of election
commissioners. The statement may not include the names or addresses of any
electors.
Court determinations of incompetency and ineligibility to vote
Under current law, no person who is incapable of understanding the objective
of the elective process or who is under a guardianship may vote unless a court has
determined that the person is competent to vote. Current law also allows any voter
in a municipality to petition a circuit court to determine whether a person residing
in the municipality is incapable of understanding the objective of the elective
process. If the court determines that the person is incapable of such understanding,
the person is not eligible to register to vote or to vote. Current law requires the clerk
of the circuit court to communicate the court's determinations, in writing, to the
election officials who are responsible for determining challenges to registration and
voting that may be brought against the person.
This bill requires the circuit court to notify the Elections Commission, by email,
of the court's determination regarding incompetency and ineligibility to register to
vote or to vote. Under the bill, when the commission receives a determination of
incompetency and ineligibility to register to vote or to vote, the commission must,
within three business days, change the status of the voter subject to the
determination to inactive on the official voter registration list, note on the list that
the voter is ineligible to register to vote or to vote, and notify the voter and the voter's
municipal clerk of the voter's change in status. The bill also provides that if a court
reviews a determination of incompetency and ineligibility to vote and restores the
voter's right to vote, upon receipt of that determination by email, the commission
must, within three business days, notify the voter that the voter is eligible to vote and
that the voter is required to complete a new registration to vote if the voter intends
to vote. Under the bill, the clerk must examine the registration list before issuing
a ballot to any voter.