Chapter 5

5.64(1)(g) (g) Following under the independent candidates for each office, a space shall be provided for the elector to write in the name of a candidate of his or her choice for that office.

5.64(2) (2) Referendum ballot.

5.64(2)(am) (am) There shall be a separate ballot when any proposed constitutional amendment or any other measure or question is submitted to a vote of the people, except as authorized in s. 5.655. The ballot shall give a concise statement of each question in accordance with the act or resolution directing submission in the same form as prescribed by the commission under s. 7.08 (1) (a). The question may not be worded in such a manner as to require a negative vote to approve a proposition or an affirmative vote to disapprove a proposition. Unless otherwise expressly provided, this ballot form shall be used at all elections when questions are submitted to a vote of the people.

5.64(2)(c) (c) The official referendum ballot prescribed under this subsection shall be utilized at every election, except that the format shall be altered to the extent provided or required by other laws establishing or authorizing referenda to be conducted. Except as authorized in s. 5.655, all referenda shall appear on a separate ballot, but more than one referendum question may appear on the same referendum ballot whenever the questions are numbered and all electors voting the ballot are entitled to vote upon all questions appearing thereon. When more than one state referendum is placed on the same ballot, the commission shall number the questions in chronological sequence. If the legislature submits questions on different dates, the commission shall number the questions sequentially based on the date on which the questions are submitted by the legislature. Except as authorized in s. 5.655, state and county referenda shall appear on a separate ballot from municipal or special district referenda. The form of all referendum ballots shall be substantially the same as that prescribed by the commission under s. 7.08 (1) (a).

5.64 History History: 1971 c. 304 s. 29 (2); 1977 c. 26, 427; 1979 c. 260; 1981 c. 79, 175, 377, 391; 1983 a. 484; 1985 a. 304; 1987 a. 391; 1989 a. 31, 192; 1991 a. 316; 1999 a. 182; 2005 a. 149; 2011 a. 23, 115; 2015 a. 118 s. 266 (10).

5.65 5.65 Special referendum ballots. Unless otherwise provided, ballots for special referenda shall conform to the format prescribed under s. 5.64 (2), insofar as applicable.

5.65 History History: 1983 a. 484; 1999 a. 182.

5.655 5.655 Consolidated ballots.

5.655(1) (1) Whenever a separate ballot is required to be used, a municipality may use a single ballot to facilitate the use of voting machines or an electronic voting system or, if the municipality employs paper ballots, may use a consolidated paper ballot that is authorized under sub. (2). If a municipality uses a single ballot in lieu of separate ballots, the ballot shall include a separate column or row for any office, referendum or party for which a separate ballot is required by law and the ballot shall be distributed only to electors who are eligible to vote for all of the offices and referenda appearing on the ballot.

5.655(2) (2) Whenever a municipality employing paper ballots is required to utilize separate ballots for certain offices, referenda or parties at an election, the municipality may, with the approval of the county clerk or board of election commissioners of each county in which there is located any portion of the municipality where one or more electors reside, substitute a single consolidated paper ballot or a ballot that is designed to be utilized with an electronic voting system, if the ballot contains all of the applicable information required to be provided for paper ballots at that election.

5.655(3) (3) The commission shall prescribe notices and instructions to be given to electors who use a ballot that is authorized under sub. (2) in lieu of any notices and instructions that are applicable only to municipalities employing separate paper ballots.

5.655 History History: 1999 a. 182; 2015 a. 118 s. 266 (10).

5.66 5.66 Number of ballots.

5.66(1) (1) For local elections, where necessary, municipal clerks shall have sufficient ballots printed or otherwise prepared whenever a voting system does not utilize printed ballots to assure a ballot for all electors or voting machines. For all other elections the municipal clerks shall certify to their county clerk, on the first day of the 2nd month preceding the month in which the primary is held, the approximate number of electors in the municipality. The county clerk shall total these estimates and order a sufficient supply to assure ballots for all electors and voting machines.

5.66(2) (2) The county clerk or board of election commissioners shall print a sufficient number of sample ballots. The municipal clerk or board of election commissioners shall print sample ballots whenever the municipality prepares ballots under s. 7.15 (2) (b) or (c). Sample ballots shall be printed on nonwhite colored paper and shall be overprinted “SAMPLE”. Voting machine sample ballots shall be a reduced size diagram of the face of the board or screen inside the voting machine with all candidates, issues and voting instructions as they will appear on the official ballot. Sample ballots to be used with an electronic voting system in which ballots that are distributed to electors are used shall be an actual size copy of the ballot. The clerk or board of election commissioners printing the ballots shall distribute the samples approximately as follows: 45 percent shall be kept in the clerk’s or board’s office and distributed to electors requesting them; 45 percent shall be sent to the municipalities, or, if the municipality prints ballots, 45 percent shall be sent to the county for distribution to the electors; and 10 percent shall be reserved to be sent to the polling places by municipalities in proportion to the number certified in sub. (1) and made available to electors at the polls on election day.

5.66 History History: 1979 c. 260, 311, 355; 1983 a. 484; 1987 a. 391; 2001 a. 16.

5.68 5.68 Cost of elections.

5.68(1) (1) The cost of acquisition of ballot boxes and voting booths, voting machines or electronic voting systems and regular maintenance thereof shall be borne by the municipalities in which the boxes, booths, machines or systems are used.

5.68(2) (2) Except as otherwise expressly provided, all costs for ballots, supplies, notices and any other materials necessary in preparing or conducting any election shall be paid for by the county or municipality whose clerk or board of election commissioners is responsible for providing them. If a ballot is prepared for a school, technical college, sewerage or sanitary district, the district shall pay for the cost of the ballot. If no other level of government is involved in a school, technical college, sewerage or sanitary district election, the district shall pay for all costs of the ballots, supplies, notices and other materials. If ballots, supplies, notices or other materials are used for elections within more than one unit of local government, the costs shall be proportionately divided between the units of local government involved in the election. In a 1st class city, all costs otherwise attributable to a school district shall be paid by the city.

5.68(3) (3) If voting machines are used or if an electronic voting system is used in which all candidates and referenda appear on the same ballot, the ballots for all national, state and county offices and for county and state referenda shall be prepared and paid for by the county wherein they are used. If the voting machine or electronic voting system ballot includes a municipal or school, technical college, sewerage or sanitary district ballot, the cost of that portion of the ballot shall be reimbursed to the county or paid for by the municipality or district, except as provided in a 1st class city school district under sub. (2).

5.68(4) (4) The cost of compensation of election officials and trainees shall be borne in the manner provided in s. 7.03.

5.68(5) (5) If a charge is made for the use of a polling place, the charge shall be paid by the municipality establishing the polling place under s. 5.25 (2) unless the polling place is used to conduct a special election that is called by a unit of government other than the state or the municipality establishing the polling place and the special election is not held concurrently with an election specified in s. 5.02 (5), (12s), (21), or (22). In such case the charge shall be paid by the unit of government that calls the special election.

5.68(6) (6) The clerk of each county or municipality shall submit an invoice to the clerk of each municipality or district which is responsible for payment of election costs under this section. The municipality or district shall make payment to the county or municipal treasurer.

5.68 History History: 1979 c. 260, 311, 355; 1985 a. 304; 1993 a. 399; 1999 a. 182; 2001 a. 16; 2005 a. 333, 451; 2011 a. 32; 2013 a. 165; 2015 a. 118.

5.72 5.72 Correcting ballot errors.

5.72(1) (1) As soon as possible after ballots are delivered to the county clerk or to the municipal clerk if the municipality is preparing ballots under s. 7.15 (2), but not later than 3 weeks before any election relating to a state or national office or statewide referendum, the county or municipal clerk preparing the ballots shall submit one copy of each ballot to the commission for review of possible errors. If the contractor preparing the ballots supplies proofs in advance of ballot preparation, the clerk shall submit one copy of the proofs in lieu of actual ballots. If a voting machine ballot or other ballot combining local candidates or referenda with state or national candidates or referenda is used, the entire ballot shall be submitted, but if ballots intended for distribution to electors are used, only those ballots relating to state or national offices and statewide referenda need be submitted. This subsection does not require delay of ballot distribution or mailing of absentee ballots.

5.72(2) (2) The commission shall review ballots and proof copies submitted under sub. (1) and shall notify the county and municipal clerk of any error as soon as possible but in no event later than 7 days after submission. The clerk is not required to correct a ballot error upon receipt of notice of the error, unless ordered to do so under sub. (3) or s. 5.06 (6).

5.72(3) (3) Whenever an affidavit is filed by the commission or any elector alleging an error or omission in the preparation of a ballot, the circuit court for the county where the ballot is proposed to be used or its presiding judge, by order, may summarily require a county or municipal clerk to correct the error, or show cause why it should not be corrected and, by order, after the hearing, have the correction made.

5.72 History History: 1979 c. 260; 1979 c. 311 s. 19; 1979 c. 355 ss. 9, 10; Stats. 1979 s. 5.72; 1981 c. 377; 1983 a. 484; 2015 a. 118 s. 266 (10).

subch. III of ch. 5 SUBCHAPTER III

ELECTRONIC VOTING SYSTEMS

5.76 5.76 Adoption, experimentation or discontinuance of systems. The governing body or board of election commissioners of any municipality may by ordinance or resolution adopt, experiment with, or discontinue any electronic voting system authorized by this subchapter and approved under s. 5.91 for use in this state, and may purchase or lease materials or equipment for such system to be used in all or some of the wards within its jurisdiction, either exclusively in combination with mechanical voting machines, or in combination with paper ballots where such ballots are authorized to be used.

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.