WISCONSIN
This policy brief gives reporters quick access to important concepts, laws, and procedures of elections in WISCONSIN.
The information is grouped by three pillars: transparency, verification of results, and judicial review. It aims to be a go-to resource, especially when journalists must cover close, contested, and disputed elections. Today's voters have many questions about the fairness of elections. So, the Election Overtime project aims to inform media coverage of elections that helps explain how elections are grounded in the impartial rule of law. The brief focuses on structures that enable fairness and confidence, such as the role of poll watchers, rigorous verification procedures, and the evidentiary requirements of the courts for races that are contested.
The Election Reformers Network team stands ready to support journalists in deploying this content in your coverage.
The information is grouped by three pillars: transparency, verification of results, and judicial review. It aims to be a go-to resource, especially when journalists must cover close, contested, and disputed elections. Today's voters have many questions about the fairness of elections. So, the Election Overtime project aims to inform media coverage of elections that helps explain how elections are grounded in the impartial rule of law. The brief focuses on structures that enable fairness and confidence, such as the role of poll watchers, rigorous verification procedures, and the evidentiary requirements of the courts for races that are contested.
The Election Reformers Network team stands ready to support journalists in deploying this content in your coverage.
PILLAR 1: Transparency
Election officials, like all public servants, deserve respect and support. However, with a process as critical as elections, it’s important to ensure these officials are accountable to the voters. Like many other areas of governance in the United States, transparency is one of the key mechanisms for that accountability. While there are many ways transparency can be built into election systems, one of the most important is the right established by law for competing parties to post their own observers to watch many of the phases of the election.
In recent decades, as democratization efforts challenged authoritarian rule in many countries, reformers prioritized the right of parties to observe elections as an essential element of free and fair elections.
In recent decades, as democratization efforts challenged authoritarian rule in many countries, reformers prioritized the right of parties to observe elections as an essential element of free and fair elections.
QUESTION 1: What are the roles of election boards, poll workers, and observers?
1.a. A hierarchy of election groups and people hold the Wisconsin election process accountable and protect candidates.
Wisconsin Elections Commission: The Wisconsin Elections Commission is responsible for administering elections in the state. This bipartisan commission oversees local election officials, investigates election-related complaints, approves and audits electronic voting equipment, and establishes rules and regulations. It is composed of six members. Two Democrats and two Republicans are selected by their respective Legislative leadership. Additionally, one Democrat and one Republican must be former municipal or county clerks and are appointed through a joint effort of the legislature and the Governor.
County Clerks: Elected county clerks handle some administrative aspects of elections, including printing ballots and initiating the process for countywide certification. The exception is Milwaukee, where a county election commission handles these duties.
Municipal clerks: Municipal clerks, whether elected or appointed, supervise elections in their city including handling polling places and ballots, equipping polling places, and training election officials. The exception is Milwaukee, where a municipal election commission supervises elections.
Election Inspectors: Election inspectors are poll workers appointed by municipal clerks. They are responsible for checking in voters, issuing ballots, and ensuring that the election laws are followed. To the extent that the Republicans and Democratic parties have submitted lists of qualified individuals to serve as poll workers, about half of the inspectors at a polling place can be affiliated with the same political party. In this case, the dominant political party, which received the most votes local for governor, receives one extra inspector.
Municipal Board of Canvassers: In any municipality with more than one ward, the municipal municipal clerk and two qualified electors of the municipality appointed by the clerk constitute the municipal board of canvassers. The municipal boards of canvassers are responsible for canvassing the returns from the election for their city and, for any elected offices spanning more than one city, reporting results to the relevant county board of canvassers. In Milwaukee, the municipal election commission acts as the board of canvassers.
County Board of Canvassers: The county clerk and 2 qualified electors of the county appointed by the clerk constitute the county board of canvassers. One member of the board must belong to a different political party than the clerk. The county boards of canvassers are responsible for opening and publicly examining (canvassing) the returns from the election.
Board of Absentee Ballot Canvassers: The board of absentee ballot canvassers is a municipal body that can be established by ordinance to count absentee ballots centrally instead of at polling places. The board publicly convenes to count absentee ballots any time after polls open and before 10 p.m. on election day. Cities with these boards include Milwaukee and Green Bay.
Election observers: There are no officially designated election observers in Wisconsin. Instead, anyone who desires to may act as an observer by signing in at the polling location or other site where election activity is taking place. Observers are allowed to challenge the eligibility of individual voters or absentee ballots, based on specific allegations filed with polling place officials.
1.b. Wisconsin allows most people to be election observers.
Who can observe: Anyone has the right to be present to observe the conduct and administration of the election. There is no residency or organizational affiliation requirement. To be designated an observer a member of the public must log in, show a photo ID, and provide the name of the candidate or other interest they are representing, if any. They must also wear a observer badge and stay in the designated observer areas.
Who cannot observe: The only restriction on public access to the election in Wisconsin is that candidates may not serve as observers. Election officials have the authority to limit the number of observers due to space constraints and can reasonably limit the number of observers representing the same organization. Officials also have the authority to expel an observer who is disruptive or does not follow the rules.
—————
CONTEXT: Training can help observers.
Wisconsin provides more opportunities than many other states for the public to view election activity up close. However, that openness means that observers do not have to receive any official authorization or training from election administrators or other knowledgeable organizations. Like some other states, Wisconsin has faced disruptions by observers at polling stations in recent elections.
One cross-partisan national program led by the Carter Center and Ford Presidential Foundation calls on all candidates to “encourage political parties and others to train poll-watchers on the election process and appropriate roles and behaviors, responsibilities, and obligations.”
Learn more about all five principles.
—————
Wisconsin Elections Commission: The Wisconsin Elections Commission is responsible for administering elections in the state. This bipartisan commission oversees local election officials, investigates election-related complaints, approves and audits electronic voting equipment, and establishes rules and regulations. It is composed of six members. Two Democrats and two Republicans are selected by their respective Legislative leadership. Additionally, one Democrat and one Republican must be former municipal or county clerks and are appointed through a joint effort of the legislature and the Governor.
County Clerks: Elected county clerks handle some administrative aspects of elections, including printing ballots and initiating the process for countywide certification. The exception is Milwaukee, where a county election commission handles these duties.
Municipal clerks: Municipal clerks, whether elected or appointed, supervise elections in their city including handling polling places and ballots, equipping polling places, and training election officials. The exception is Milwaukee, where a municipal election commission supervises elections.
Election Inspectors: Election inspectors are poll workers appointed by municipal clerks. They are responsible for checking in voters, issuing ballots, and ensuring that the election laws are followed. To the extent that the Republicans and Democratic parties have submitted lists of qualified individuals to serve as poll workers, about half of the inspectors at a polling place can be affiliated with the same political party. In this case, the dominant political party, which received the most votes local for governor, receives one extra inspector.
Municipal Board of Canvassers: In any municipality with more than one ward, the municipal municipal clerk and two qualified electors of the municipality appointed by the clerk constitute the municipal board of canvassers. The municipal boards of canvassers are responsible for canvassing the returns from the election for their city and, for any elected offices spanning more than one city, reporting results to the relevant county board of canvassers. In Milwaukee, the municipal election commission acts as the board of canvassers.
County Board of Canvassers: The county clerk and 2 qualified electors of the county appointed by the clerk constitute the county board of canvassers. One member of the board must belong to a different political party than the clerk. The county boards of canvassers are responsible for opening and publicly examining (canvassing) the returns from the election.
Board of Absentee Ballot Canvassers: The board of absentee ballot canvassers is a municipal body that can be established by ordinance to count absentee ballots centrally instead of at polling places. The board publicly convenes to count absentee ballots any time after polls open and before 10 p.m. on election day. Cities with these boards include Milwaukee and Green Bay.
Election observers: There are no officially designated election observers in Wisconsin. Instead, anyone who desires to may act as an observer by signing in at the polling location or other site where election activity is taking place. Observers are allowed to challenge the eligibility of individual voters or absentee ballots, based on specific allegations filed with polling place officials.
1.b. Wisconsin allows most people to be election observers.
Who can observe: Anyone has the right to be present to observe the conduct and administration of the election. There is no residency or organizational affiliation requirement. To be designated an observer a member of the public must log in, show a photo ID, and provide the name of the candidate or other interest they are representing, if any. They must also wear a observer badge and stay in the designated observer areas.
Who cannot observe: The only restriction on public access to the election in Wisconsin is that candidates may not serve as observers. Election officials have the authority to limit the number of observers due to space constraints and can reasonably limit the number of observers representing the same organization. Officials also have the authority to expel an observer who is disruptive or does not follow the rules.
—————
CONTEXT: Training can help observers.
Wisconsin provides more opportunities than many other states for the public to view election activity up close. However, that openness means that observers do not have to receive any official authorization or training from election administrators or other knowledgeable organizations. Like some other states, Wisconsin has faced disruptions by observers at polling stations in recent elections.
One cross-partisan national program led by the Carter Center and Ford Presidential Foundation calls on all candidates to “encourage political parties and others to train poll-watchers on the election process and appropriate roles and behaviors, responsibilities, and obligations.”
Learn more about all five principles.
—————
QUESTION 2: What about nonpartisan election observers (monitors) and the public?
2.a. Nonpartisan election monitoring is different from partisan observation.
Nonpartisan election observation (monitors) is an impartial process where trained monitors systematically gather data about an election in order to assess key aspects of the process and report on the degree to which the election was fair, peaceful, and credible. Grounded by facts and evidence, trustworthy monitors validate the critical work being done by those on the front lines of our democracy. When organized correctly, monitors cannot be party actors or advocates — in fact, monitors agree to follow a strict code of conduct to ensure they remain nonpartisan and don’t interfere with the voting process. According to The Carter Center, which is an international leader in election monitoring, this nonpartisan work is a common best practice in many democracies around the globe.
2.b. Wisconsin does not provide nonpartisan observers with additional access.
Wisconsin provides all members of the public with the same equal access to observe elections. It does not explicitly provide any additional monitoring opportunities for impartial or nonpartisan monitors.
—————
CONTEXT: Titles can be confusing.
Throughout this section (Question 2) we use the terms “nonpartisan election observers” or “nonpartisan election monitors” to refer to people whose role is to be impartial and focus on the process. These people are often researchers or “good government” experts. Note: this role is often confused with assigned observers for ballot initiatives, independent candidates, or nonpartisan candidates (such as observers for school board races).
—————
Nonpartisan election observation (monitors) is an impartial process where trained monitors systematically gather data about an election in order to assess key aspects of the process and report on the degree to which the election was fair, peaceful, and credible. Grounded by facts and evidence, trustworthy monitors validate the critical work being done by those on the front lines of our democracy. When organized correctly, monitors cannot be party actors or advocates — in fact, monitors agree to follow a strict code of conduct to ensure they remain nonpartisan and don’t interfere with the voting process. According to The Carter Center, which is an international leader in election monitoring, this nonpartisan work is a common best practice in many democracies around the globe.
2.b. Wisconsin does not provide nonpartisan observers with additional access.
Wisconsin provides all members of the public with the same equal access to observe elections. It does not explicitly provide any additional monitoring opportunities for impartial or nonpartisan monitors.
—————
CONTEXT: Titles can be confusing.
Throughout this section (Question 2) we use the terms “nonpartisan election observers” or “nonpartisan election monitors” to refer to people whose role is to be impartial and focus on the process. These people are often researchers or “good government” experts. Note: this role is often confused with assigned observers for ballot initiatives, independent candidates, or nonpartisan candidates (such as observers for school board races).
—————
QUESTION 3: What are poll observers allowed to see?
3.a. Most election procedures are open to observation.
Observers are allowed in designated areas wherever votes are being cast or counted. They may examine the poll book – the official list of registered voters for the election. However, observers must stay 3 feet away from voters and voting activity. This rule protects voters, who have right to a secret ballot under the Wisconsin Constitution. Observers cannot interfere with or impede voting and other election procedures, they can be asked to leave if they do so. Canvass meetings are also open to public observation, but may adhere to different sign-in practices than those required at polling and tabulation sites.
Observers are allowed in designated areas wherever votes are being cast or counted. They may examine the poll book – the official list of registered voters for the election. However, observers must stay 3 feet away from voters and voting activity. This rule protects voters, who have right to a secret ballot under the Wisconsin Constitution. Observers cannot interfere with or impede voting and other election procedures, they can be asked to leave if they do so. Canvass meetings are also open to public observation, but may adhere to different sign-in practices than those required at polling and tabulation sites.
PILLAR 2: Verification of Results
For citizens and politicians, elections are a lot like horse races, with the focus squarely on who’s ahead at the end. For election professionals, by contrast, a better metaphor is a series of accounting problems. Does everything balance including seal numbers on equipment, ballots used, initial tabulations and audit results, etc.? Election procedures and paperwork are built to facilitate this verification.
Verification is supported by redundancy, with multiple layers of checks designed to find any errors and confirm accuracy.
Verification is supported by redundancy, with multiple layers of checks designed to find any errors and confirm accuracy.
QUESTION 4: How is the security and accuracy of equipment verified?
4.a. Vote counting accuracy is tested before voting.
Vote counting in Wisconsin is generally done with scanners that read voters’ hand-marked ballots and total the votes when the ballots are entered. Absentee ballots are scanned by election inspectors under the supervision of the local clerk or election commission and in a location viewable by the public. Per the state’s summarized election procedures, election officials must demonstrate before any equipment is used that a varied set of test ballots is accurately scanned and tabulated by each scanner.
This process is called “Logic and Accuracy” testing and can be observed by the public. Wisconsin’s testing, combined with the state’s audits, recounts, and other procedures, is structured to catch errors before election results are finalized. It is worth noting that the state ranked 21st in a national ranking of logic and accuracy testing. In the 2022 paper, University of Michigan researchers gave the state high marks for procedural criteria such as rules and transparency, but lower marks for functional criteria such as random testing protections.
The logic and accuracy tests are done in addition to testing required by the state before it approves electronic voting systems for local adoption and use in Wisconsin.
4.b. Most voters use hand-marked paper ballots and electronic voting devices must produce a paper record.
Per state law, local legislators and election commissions have discretion over what type of ballot their voters will use including hand-marked paper ballots or electronic voting using state-certified election technology. According to Verified Voting, on election day most jurisdictions in Wisconsin use hand marked paper ballots for most voters, while having electronic systems available for some voters, including voters with accessibility requirements. (Equipment used for in person absentee (early) voting may differ from that used on election day.)
State law also mandates that there be a paper trail for every vote no matter what kind of ballot or voting equipment is used. Having a paper trail allows officials to audit or recount the ballots if there are concerns about the results from electronic tabulators.
A voting equipment summary, broken out by municipality, is available on the Elections Commission’s website.
—————
CONTEXT: A Note About Ballot Marking Devices
While some experts suggest voting is more efficient and accessible when all voters use a BMD, others disagree. The national organization Verified Voting recommends that voters mark ballots by hand, citing research that voters are not likely to verify their BMD printout before putting in the machine. On the other hand, the Center for Civic Design favors BMDs, in part because of their speed in tabulation and ease of use for voters with disabilities. The U.S. Election Assistance Commission, a bipartisan federal commission, doesn’t take a position on BMDs but simply recommends that jurisdictions maintain paper ballots, regardless of how they are marked. In addition, federal law requires that every precinct have at least one accessible, electronic voting-system so that voters with disabilities have the same opportunity to vote as their neighbors.
To compare the different types of voting technology, visit MIT’s election data lab.
—————
4.c. Equipment must meet state and federal security requirements.
Only pre-approved voting systems can be used in elections, including poll books. The systems must come from a list of technology certified by the Wisconsin Elections Commission, which signals it is in compliance with state and federal security requirements. Local legislators and election commissions adopt electronic voting systems for their communities via ordinance or resolution.
The state’s Elections Commission has certified “modem capable equipment.” Authorities who acquire such equipment can connect the devices to a secure network after the polls have closed in order to transmit unofficial election results.
Vote counting in Wisconsin is generally done with scanners that read voters’ hand-marked ballots and total the votes when the ballots are entered. Absentee ballots are scanned by election inspectors under the supervision of the local clerk or election commission and in a location viewable by the public. Per the state’s summarized election procedures, election officials must demonstrate before any equipment is used that a varied set of test ballots is accurately scanned and tabulated by each scanner.
This process is called “Logic and Accuracy” testing and can be observed by the public. Wisconsin’s testing, combined with the state’s audits, recounts, and other procedures, is structured to catch errors before election results are finalized. It is worth noting that the state ranked 21st in a national ranking of logic and accuracy testing. In the 2022 paper, University of Michigan researchers gave the state high marks for procedural criteria such as rules and transparency, but lower marks for functional criteria such as random testing protections.
The logic and accuracy tests are done in addition to testing required by the state before it approves electronic voting systems for local adoption and use in Wisconsin.
4.b. Most voters use hand-marked paper ballots and electronic voting devices must produce a paper record.
Per state law, local legislators and election commissions have discretion over what type of ballot their voters will use including hand-marked paper ballots or electronic voting using state-certified election technology. According to Verified Voting, on election day most jurisdictions in Wisconsin use hand marked paper ballots for most voters, while having electronic systems available for some voters, including voters with accessibility requirements. (Equipment used for in person absentee (early) voting may differ from that used on election day.)
State law also mandates that there be a paper trail for every vote no matter what kind of ballot or voting equipment is used. Having a paper trail allows officials to audit or recount the ballots if there are concerns about the results from electronic tabulators.
A voting equipment summary, broken out by municipality, is available on the Elections Commission’s website.
—————
CONTEXT: A Note About Ballot Marking Devices
While some experts suggest voting is more efficient and accessible when all voters use a BMD, others disagree. The national organization Verified Voting recommends that voters mark ballots by hand, citing research that voters are not likely to verify their BMD printout before putting in the machine. On the other hand, the Center for Civic Design favors BMDs, in part because of their speed in tabulation and ease of use for voters with disabilities. The U.S. Election Assistance Commission, a bipartisan federal commission, doesn’t take a position on BMDs but simply recommends that jurisdictions maintain paper ballots, regardless of how they are marked. In addition, federal law requires that every precinct have at least one accessible, electronic voting-system so that voters with disabilities have the same opportunity to vote as their neighbors.
To compare the different types of voting technology, visit MIT’s election data lab.
—————
4.c. Equipment must meet state and federal security requirements.
Only pre-approved voting systems can be used in elections, including poll books. The systems must come from a list of technology certified by the Wisconsin Elections Commission, which signals it is in compliance with state and federal security requirements. Local legislators and election commissions adopt electronic voting systems for their communities via ordinance or resolution.
The state’s Elections Commission has certified “modem capable equipment.” Authorities who acquire such equipment can connect the devices to a secure network after the polls have closed in order to transmit unofficial election results.
QUESTION 5: How do officials verify registration and validity of individual votes?
5.a. Wisconsin officials draw on a range of sources to update voter rolls, within limits set by federal law.
A challenge that Wisconsin, and every other state faces, is that Americans move a lot and rarely let voting officials know. The result is an ongoing risk that voting rolls will contain names of people no longer eligible to vote in the state. However, wide-scale purges of voter rolls can lead to worries about possible voter suppression.
A system that helps address voter registration problems is the Election Registration Information Center (ERIC), which enables, limited, information-sharing between states. Per state law, Wisconsin is a member of ERIC and can use that membership to help identify names of voters no longer in the state. (Wisconsin has retained its membership in ERIC, standing against what is widely considered by election officials to be misinformation about the program. In the last two years, nine states withdrew their membership and subsequently encountered significant problems replacing the data benefits of the system.)
In addition to ERIC, municipal clerks may update voter registration with information from other state and national databases and sources. Wisconsin law also requires that the Elections Commission remove inactive voters after a notice period. Federal law prohibits removing voters simply for non-voting, but a state can remove someone from the rolls if it sends a notice to a non-voter who fails to respond (or vote) within the next two federal elections. Even if a voter has not responded during that time frame, federal law prohibits removing voters from the rolls within 90 days of an election.
Wisconsin residents can check their registration status online, ensuring they can vote on election day.
5.b. Wisconsin law prohibits registration by noncitizens.
To register to vote in Wisconsin, state law requires the registrant to be an adult U.S. citizen, as well as a resident of the district in which they plan to vote for at least 28 consecutive days. If it's been less than 28 days they can register at their immediate previous Wisconsin address. Citizenship papers are not required to register, but applicants must assert their citizenship status and other qualifications on the signed application form. Improperly registering and voting, whether by lack of residency or lack of citizenship, is considered a Class I felony and those in violation may be fined up to $10,000 and/or imprisoned for up to 3 years and 6 months. It is also federally unlawful. Doing so may result in prison time as well as deportation or denial of future immigration status.
Nationally, the Heritage Foundation has conducted research on a range of possible avenues for voter fraud. Their published national analysis of legal actions identified 24 instances of noncitizens voting between 2003 and 2023, across 50 states and millions of votes cast.
5.c. Wisconsin allows challenges to voter eligibility.
Wisconsin law allows a person's qualifications to vote to be challenged by any election official from their city or county and by any elector (qualified voter) from their municipality. The challenge can happen in two main ways: 1) through the municipal clerk or the local board of election commissioners; or 2) at the polling station when the registrant in question is attempting to vote.
Although there is no limit to the number of challenges any one person can make, pre-election challengers must appear before the clerk or board in person or their petition should be dismissed. During in-person voting election inspectors or other voters may challenge, under oath, any voter they "know or suspect is not a qualified elector." Challenges must also be based on an accusation tied to state law, such as the person’s age or residence.
5.d. Photo ID is required to vote in person.
In Wisconsin, most voters must show a photo ID. However, under the Help America Vote Act (HAVA), first-time voters who registered by mail and have not previously voted in a federal election in Wisconsin can instead present an alternative document that shows their name and address (i.e., utility bill, bank statement, paycheck).
Citizens who do not have appropriate ID are given a provisional ballot, which is isolated and only counted if the voter brings an acceptable form of ID to the municipal clerk's office by 4 p.m. on the Friday following the election. While 36 states require or request photo ID at the polls, Wisconsin’s provisions make it one of the 9 states ranked the strictest.
—————
CONTEXT: Turnout and Voting Access
Turnout in Wisconsin is consistently above average for the country. This is true despite the state having one of the strictest voter ID laws in the nation and relatively low accessibility for disabled voters - as measured by the difference in turnout rates between people who reported having one of six disabilities, and those who reported having none. (MIT Election Data & Science Lab)
—————
5.e. Vote by mail and early voting also requires a photo ID.
Wisconsin, along with 28 states and the District of Columbia has no-excuse vote-by-mail. Seven states conduct their entire election by mail-in ballot.
In Wisconsin, most voters must provide a copy of a photo ID with their vote by mail request. The voter must then sign a statement on the absentee (vote-by-mail) ballot envelope certifying that they are eligible to vote. Ballots can be returned by mail or in person to the voter's municipal clerk's office. In addition, starting two weeks before the election, municipalities may allow voters to request and return an absentee ballot, as a form of in person early voting. Some municipalities also offer secure drop boxes. All absentee ballots must be received by the clerk by election day.
A challenge that Wisconsin, and every other state faces, is that Americans move a lot and rarely let voting officials know. The result is an ongoing risk that voting rolls will contain names of people no longer eligible to vote in the state. However, wide-scale purges of voter rolls can lead to worries about possible voter suppression.
A system that helps address voter registration problems is the Election Registration Information Center (ERIC), which enables, limited, information-sharing between states. Per state law, Wisconsin is a member of ERIC and can use that membership to help identify names of voters no longer in the state. (Wisconsin has retained its membership in ERIC, standing against what is widely considered by election officials to be misinformation about the program. In the last two years, nine states withdrew their membership and subsequently encountered significant problems replacing the data benefits of the system.)
In addition to ERIC, municipal clerks may update voter registration with information from other state and national databases and sources. Wisconsin law also requires that the Elections Commission remove inactive voters after a notice period. Federal law prohibits removing voters simply for non-voting, but a state can remove someone from the rolls if it sends a notice to a non-voter who fails to respond (or vote) within the next two federal elections. Even if a voter has not responded during that time frame, federal law prohibits removing voters from the rolls within 90 days of an election.
Wisconsin residents can check their registration status online, ensuring they can vote on election day.
5.b. Wisconsin law prohibits registration by noncitizens.
To register to vote in Wisconsin, state law requires the registrant to be an adult U.S. citizen, as well as a resident of the district in which they plan to vote for at least 28 consecutive days. If it's been less than 28 days they can register at their immediate previous Wisconsin address. Citizenship papers are not required to register, but applicants must assert their citizenship status and other qualifications on the signed application form. Improperly registering and voting, whether by lack of residency or lack of citizenship, is considered a Class I felony and those in violation may be fined up to $10,000 and/or imprisoned for up to 3 years and 6 months. It is also federally unlawful. Doing so may result in prison time as well as deportation or denial of future immigration status.
Nationally, the Heritage Foundation has conducted research on a range of possible avenues for voter fraud. Their published national analysis of legal actions identified 24 instances of noncitizens voting between 2003 and 2023, across 50 states and millions of votes cast.
5.c. Wisconsin allows challenges to voter eligibility.
Wisconsin law allows a person's qualifications to vote to be challenged by any election official from their city or county and by any elector (qualified voter) from their municipality. The challenge can happen in two main ways: 1) through the municipal clerk or the local board of election commissioners; or 2) at the polling station when the registrant in question is attempting to vote.
Although there is no limit to the number of challenges any one person can make, pre-election challengers must appear before the clerk or board in person or their petition should be dismissed. During in-person voting election inspectors or other voters may challenge, under oath, any voter they "know or suspect is not a qualified elector." Challenges must also be based on an accusation tied to state law, such as the person’s age or residence.
5.d. Photo ID is required to vote in person.
In Wisconsin, most voters must show a photo ID. However, under the Help America Vote Act (HAVA), first-time voters who registered by mail and have not previously voted in a federal election in Wisconsin can instead present an alternative document that shows their name and address (i.e., utility bill, bank statement, paycheck).
Citizens who do not have appropriate ID are given a provisional ballot, which is isolated and only counted if the voter brings an acceptable form of ID to the municipal clerk's office by 4 p.m. on the Friday following the election. While 36 states require or request photo ID at the polls, Wisconsin’s provisions make it one of the 9 states ranked the strictest.
—————
CONTEXT: Turnout and Voting Access
Turnout in Wisconsin is consistently above average for the country. This is true despite the state having one of the strictest voter ID laws in the nation and relatively low accessibility for disabled voters - as measured by the difference in turnout rates between people who reported having one of six disabilities, and those who reported having none. (MIT Election Data & Science Lab)
—————
5.e. Vote by mail and early voting also requires a photo ID.
Wisconsin, along with 28 states and the District of Columbia has no-excuse vote-by-mail. Seven states conduct their entire election by mail-in ballot.
In Wisconsin, most voters must provide a copy of a photo ID with their vote by mail request. The voter must then sign a statement on the absentee (vote-by-mail) ballot envelope certifying that they are eligible to vote. Ballots can be returned by mail or in person to the voter's municipal clerk's office. In addition, starting two weeks before the election, municipalities may allow voters to request and return an absentee ballot, as a form of in person early voting. Some municipalities also offer secure drop boxes. All absentee ballots must be received by the clerk by election day.
QUESTION 6: How are the initial tabulations checked and verified?
6.a. Wisconsin officials cannot process early ballots.
In Wisconsin, the absentee (vote-by-mail) law also details processing. Prior to election day, clerks can check the unopened envelopes as they arrive and have the authority to contact the voter if there is a defect in the information provided. However, officials must wait until the day of the election to open the envelopes and scan absentee ballots.
Municipalities also differ in how they count absentee ballots. In most places, absentee ballots (whether received through the mail or in person) are delivered on election day to the polling location for the ward/precinct in which the voter resides. Officials include these ballots in their count for the precinct. However, in a few municipalities, including Milwaukee and Green Bay, a central board of absentee ballot canvassers convenes on election day to count all of the absentee ballots for the city. In these cities, one large report containing all of the absentee votes is delivered separately from the election day in person precinct counts.
Allowing officials to prepare ballots for counting and scanning before election day is a best practice that greatly improves their ability to provide timely unofficial results. Wisconsin’s State Legislature recently considered, but did not pass, bipartisan legislation that would have allowed some pre-processing of absentee ballots.
6.b. Voting systems are subject to post-election audits.
After the polls close, Wisconsin conducts a post-election audit aimed at determining the error rate of voting equipment. The Wisconsin Elections Commission randomly selects at least 5% of reporting units - wards (precinct) or combinations of wards - in the state for auditing. The audit must include at least one reporting unit per county, and a minimum of five reporting units are selected for each type of voting system available in the state. In 2022, the audit covered 10% of reporting units in the state.
The audit is conducted using a hand count only. Four contests are counted, including the top contest on the ballot (President) and others selected randomly by Commission staff. The results of the hand count are compared to the relevant voting equipment totals. The audit is administered by the municipal clerks or county clerks, depending on who is responsible for programming the voting equipment. The results of these audits are reported to the Commission, which reviews them for any discrepancies. (Wisconsin audit procedures can be compared with other states at Verified Voting.)
In general, audits must be completed prior to certification of the election. However, in the event of a recount affected reporting units may have an additional five weeks to complete their work.
—————
CONTEXT: Official Results Come Later
In the interest of transparency, preliminary returns are presented on election night. But this is not the final word. Official returns come later after all ballots have been counted, audited, and certified.
Today, a lack of understanding of the audit and certification process by spreaders of disinformation allows conspiracy theories to flourish while making it harder for officials to do their jobs in a timely and accurate manner.
—————
6.c. Candidates in close elections can request recounts.
Candidates in close elections or anyone who voted for a closely decided referendum can request a recount. The recount option applies to elections for most offices and ensures that in close races, where wrongdoing and mistakes are of heightened concern, additional scrutiny is available.
In an election with more than 4,000 votes, a candidates can request a recount if they lost by no more than 1% of the total votes cast for the office. For example, in the case of an election with 100,000 votes cast, a candidate may request a recount if they are trailing by 1000 votes or less.
A recount petitioner must sign a statement under oath that they are informed and believe that a “mistake or fraud” was committed and/or that other specified “defects, irregularities, or illegalities” occurred. However, the petitioner does not need to provide specific evidence to support their allegations. A recount petition can include one or all wards (voting precincts). If the election was lost by more than .25% of the votes cast, the petitioning candidate must pay the costs of the recount in advance.
For state and federal elections, the county boards of canvassers conduct the recount, which is open to observation by the public.
—————
CONTEXT: Recounts Rarely Change The Outcome.
An analysis by Fairvote found that in roughly 7,000 statewide races across the U.S from 2000-2023, there were only three recounts that changed the outcome of the race, and those were all elections with a margin of victory of less than 0.06%. However, small discrepancies can happen. In fact, most recounts differ marginally from the original results of the election. The purpose of recounts isn’t to confirm exactly the same results, but rather to ensure that any individual errors or attempts at fraud could not have changed the results of an election.
—————
6.d. In general, Wisconsin certification cannot happen until all audits and recounts are complete.
State law requires that votes are recorded, investigated, and recounted at the municipal and county levels. Returns are provided to the Wisconsin Elections Commission, which coordinates additional oversight including voting system audits and final certification for state legislature and statewide races. Certification by the Commission must take place on December 1st following a general election. In most cases, the Elections Commission cannot issue certifications of election until all checks are complete. However, in the event a recount is requested the Commission may give local officials an extension on their audit that extends past certification.
6.e. Wisconsin’s method of equipment auditing and recounts is preferable to widespread hand counts.
Confusion about the certification process has led some activists to demand that ballots be hand-counted. This is not recommended as a best practice in election administration.
Studies show that hand counts are slower and less accurate than machine counting. Audits involving partial hand counts can be used as an additional data point and an additional check to verify the overall outcome, but full hand counts would likely make elections slower, less accurate, and less secure.
Despite the drawbacks, a few small municipalities in Wisconsin may continue to hand count ballots. In addition, Thornapple, in Rusk County, was recently sued by the U.S. DOJ and others after a switch to hand counted paper ballots removed accessible voting options for people with disabilities.
—————
CONTEXT: More On Hand Counts
At best, a system that relies on hand counting will take longer to generate results. But, the real risk is that it opens the door to exhausted poll workers making errors and gives bad-faith actors more fodder and time to act. We want our teachers and police officers to do their jobs using the best, most proven, technology and methods. We should want the same for election officials.
—————
In Wisconsin, the absentee (vote-by-mail) law also details processing. Prior to election day, clerks can check the unopened envelopes as they arrive and have the authority to contact the voter if there is a defect in the information provided. However, officials must wait until the day of the election to open the envelopes and scan absentee ballots.
Municipalities also differ in how they count absentee ballots. In most places, absentee ballots (whether received through the mail or in person) are delivered on election day to the polling location for the ward/precinct in which the voter resides. Officials include these ballots in their count for the precinct. However, in a few municipalities, including Milwaukee and Green Bay, a central board of absentee ballot canvassers convenes on election day to count all of the absentee ballots for the city. In these cities, one large report containing all of the absentee votes is delivered separately from the election day in person precinct counts.
Allowing officials to prepare ballots for counting and scanning before election day is a best practice that greatly improves their ability to provide timely unofficial results. Wisconsin’s State Legislature recently considered, but did not pass, bipartisan legislation that would have allowed some pre-processing of absentee ballots.
6.b. Voting systems are subject to post-election audits.
After the polls close, Wisconsin conducts a post-election audit aimed at determining the error rate of voting equipment. The Wisconsin Elections Commission randomly selects at least 5% of reporting units - wards (precinct) or combinations of wards - in the state for auditing. The audit must include at least one reporting unit per county, and a minimum of five reporting units are selected for each type of voting system available in the state. In 2022, the audit covered 10% of reporting units in the state.
The audit is conducted using a hand count only. Four contests are counted, including the top contest on the ballot (President) and others selected randomly by Commission staff. The results of the hand count are compared to the relevant voting equipment totals. The audit is administered by the municipal clerks or county clerks, depending on who is responsible for programming the voting equipment. The results of these audits are reported to the Commission, which reviews them for any discrepancies. (Wisconsin audit procedures can be compared with other states at Verified Voting.)
In general, audits must be completed prior to certification of the election. However, in the event of a recount affected reporting units may have an additional five weeks to complete their work.
—————
CONTEXT: Official Results Come Later
In the interest of transparency, preliminary returns are presented on election night. But this is not the final word. Official returns come later after all ballots have been counted, audited, and certified.
Today, a lack of understanding of the audit and certification process by spreaders of disinformation allows conspiracy theories to flourish while making it harder for officials to do their jobs in a timely and accurate manner.
—————
6.c. Candidates in close elections can request recounts.
Candidates in close elections or anyone who voted for a closely decided referendum can request a recount. The recount option applies to elections for most offices and ensures that in close races, where wrongdoing and mistakes are of heightened concern, additional scrutiny is available.
In an election with more than 4,000 votes, a candidates can request a recount if they lost by no more than 1% of the total votes cast for the office. For example, in the case of an election with 100,000 votes cast, a candidate may request a recount if they are trailing by 1000 votes or less.
A recount petitioner must sign a statement under oath that they are informed and believe that a “mistake or fraud” was committed and/or that other specified “defects, irregularities, or illegalities” occurred. However, the petitioner does not need to provide specific evidence to support their allegations. A recount petition can include one or all wards (voting precincts). If the election was lost by more than .25% of the votes cast, the petitioning candidate must pay the costs of the recount in advance.
For state and federal elections, the county boards of canvassers conduct the recount, which is open to observation by the public.
—————
CONTEXT: Recounts Rarely Change The Outcome.
An analysis by Fairvote found that in roughly 7,000 statewide races across the U.S from 2000-2023, there were only three recounts that changed the outcome of the race, and those were all elections with a margin of victory of less than 0.06%. However, small discrepancies can happen. In fact, most recounts differ marginally from the original results of the election. The purpose of recounts isn’t to confirm exactly the same results, but rather to ensure that any individual errors or attempts at fraud could not have changed the results of an election.
—————
6.d. In general, Wisconsin certification cannot happen until all audits and recounts are complete.
State law requires that votes are recorded, investigated, and recounted at the municipal and county levels. Returns are provided to the Wisconsin Elections Commission, which coordinates additional oversight including voting system audits and final certification for state legislature and statewide races. Certification by the Commission must take place on December 1st following a general election. In most cases, the Elections Commission cannot issue certifications of election until all checks are complete. However, in the event a recount is requested the Commission may give local officials an extension on their audit that extends past certification.
6.e. Wisconsin’s method of equipment auditing and recounts is preferable to widespread hand counts.
Confusion about the certification process has led some activists to demand that ballots be hand-counted. This is not recommended as a best practice in election administration.
Studies show that hand counts are slower and less accurate than machine counting. Audits involving partial hand counts can be used as an additional data point and an additional check to verify the overall outcome, but full hand counts would likely make elections slower, less accurate, and less secure.
Despite the drawbacks, a few small municipalities in Wisconsin may continue to hand count ballots. In addition, Thornapple, in Rusk County, was recently sued by the U.S. DOJ and others after a switch to hand counted paper ballots removed accessible voting options for people with disabilities.
—————
CONTEXT: More On Hand Counts
At best, a system that relies on hand counting will take longer to generate results. But, the real risk is that it opens the door to exhausted poll workers making errors and gives bad-faith actors more fodder and time to act. We want our teachers and police officers to do their jobs using the best, most proven, technology and methods. We should want the same for election officials.
—————
QUESTION 7: Who certifies results in Wisconsin, and what issues have arisen around certification?
7.a. Certification is the official sign-off on election results at different levels of election governance.
In Wisconsin, statewide certification happens at the ward, city, county, and state levels. Prior to certification, the boards of canvassers review tally sheets and inspectors' statements from each voting district. County boards must complete their canvass, issue a statement certifying the names of all persons who have won the election, and send the statement to The Wisconsin Elections Commission within 14 days after the general election (November 19, 2024).
State-level certification is the responsibility of the Chairperson of the Wisconsin Elections Commission. The Chairperson must make determinations and issue certificates for the election before the first of December. The chairperson or designee examines the certified statements from county boards, prepares statements of vote totals, and issues certificates of election to winning candidates.
7.b. Certifying results is a ministerial, non-discretionary, required function.
Wisconsin courts have confirmed the ministerial nature of certification. As early as 1855, Wisconsin’s Supreme Court stated, “there is hardly an act of government so purely ministerial as [an election canvass].”
The county boards of canvassers in Wisconsin have some powers to investigate and correct errors. According to state law if the board finds any "informal or defective" returns, 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 or remedy the returns. The board may also summon election officials to appear with election materials if needed to correct errors. However, the law is also clear that, “The county clerk shall deliver or transmit the certified statement to the elections commission no later than…14 days after the general election.” The State Elections Commission has similar authority and must “conclude the state canvass within 10 days after its commencement.”
Wisconsin officials have fully complied with their duties and state law in certifying elections in recent years. However, if a county board refused to certify, the Wisconsin Elections Commission could utilize its canvass oversight authority. In addition, a court may mandate that local or state certification be completed using a writ of mandamus.
—————
CONTEXT: Certification in U.S. Different from Other Democracies
Election certification is a feature of U.S. elections that is highly unusual from an international perspective. A recent study of 12 major democracies found that none has a separate certification step in their election process. In fact, none has the word “certification” (or its equivalent) in their election laws at all. Instead, election administrators announce the results, courts hear any challenges, and court decisions are final. Also, very few countries involve political parties in the results process. In the U.S., by contrast, most of the individuals involved in certification at the state and local levels are either party members elected in partisan elections or are nominated by parties to election boards.
—————
In Wisconsin, statewide certification happens at the ward, city, county, and state levels. Prior to certification, the boards of canvassers review tally sheets and inspectors' statements from each voting district. County boards must complete their canvass, issue a statement certifying the names of all persons who have won the election, and send the statement to The Wisconsin Elections Commission within 14 days after the general election (November 19, 2024).
State-level certification is the responsibility of the Chairperson of the Wisconsin Elections Commission. The Chairperson must make determinations and issue certificates for the election before the first of December. The chairperson or designee examines the certified statements from county boards, prepares statements of vote totals, and issues certificates of election to winning candidates.
7.b. Certifying results is a ministerial, non-discretionary, required function.
Wisconsin courts have confirmed the ministerial nature of certification. As early as 1855, Wisconsin’s Supreme Court stated, “there is hardly an act of government so purely ministerial as [an election canvass].”
The county boards of canvassers in Wisconsin have some powers to investigate and correct errors. According to state law if the board finds any "informal or defective" returns, 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 or remedy the returns. The board may also summon election officials to appear with election materials if needed to correct errors. However, the law is also clear that, “The county clerk shall deliver or transmit the certified statement to the elections commission no later than…14 days after the general election.” The State Elections Commission has similar authority and must “conclude the state canvass within 10 days after its commencement.”
Wisconsin officials have fully complied with their duties and state law in certifying elections in recent years. However, if a county board refused to certify, the Wisconsin Elections Commission could utilize its canvass oversight authority. In addition, a court may mandate that local or state certification be completed using a writ of mandamus.
—————
CONTEXT: Certification in U.S. Different from Other Democracies
Election certification is a feature of U.S. elections that is highly unusual from an international perspective. A recent study of 12 major democracies found that none has a separate certification step in their election process. In fact, none has the word “certification” (or its equivalent) in their election laws at all. Instead, election administrators announce the results, courts hear any challenges, and court decisions are final. Also, very few countries involve political parties in the results process. In the U.S., by contrast, most of the individuals involved in certification at the state and local levels are either party members elected in partisan elections or are nominated by parties to election boards.
—————
QUESTION 8: What's changed since 2020 about how Congress concludes the presidential election process?
8.a. In 2022, Congress passed the bipartisan Electoral Count Reform Act (ECRA), replacing an outdated law from 1887.
The new federal law addresses vulnerabilities in the presidential election process that were exposed by events following the 2020 election. ECRA clarified several procedures that had been ambiguous under federal law, including that the Vice President’s role in counting electoral votes is “solely ministerial.” Because the presidential election is administered by the states, ECRA also impacted aspects of state law (described below).
8.b. ECRA aims to prevent unsanctioned electors and related problems with presidential elections by clarifying details about the official submission to Congress of each state’s presidential electoral count.
Under ECRA, the governor must issue a state’s Certificate of Ascertainment of Appointment of Electors, unless state law explicitly delegates that duty to another executive official. ECRA also specifies that each certificate must contain:
Then, when those electors hold their official meeting, they sign and submit a different certificate of votes delineating the electoral college votes for President and Vice President.
In addition to these federal requirements, 33 states including Wisconsin have passed laws to prevent unsanctioned or “faithless” electors in the presidential election process.
—————
CONTEXT: 2020 “fake electors” highlighted the need for ECRA
In 2020, after it became clear that former President Donald Trump’s multiple lawsuits contesting the election results lacked evidentiary merit to alter the outcome, he and his allies assembled their own slates of presidential electors in seven states where Trump did not win. Those unsanctioned electors met the same day as the legitimate electors, cast votes for Trump, and submitted to Congress competing Certificates of Ascertainment. President Trump began a pressure campaign to urge then-Vice President Mike Pence to discard the actual results from those seven states, and instead accept the fraudulent ones during the January 6, 2021, vote counting hearing. Had the Vice President done so, and had enough members of Congress gone along, President Joe Biden would have fallen short of the 270-vote Electoral College majority.
—————
8.c. ECRA clarifies the timeline for the presidential post-election process, with implications for states.
This timeline includes a new mandatory deadline for issuing the Certificate of Ascertainment, a new deadline for court intervention, and an updated date for the electors to meet and cast their votes. As a result, many intermediate state deadlines (such as vote counting, recounts, and audits) may need to be updated to comply with the new mandatory deadlines. Some states have updated their laws to reflect this timeline. Although Wisconsin is not among them, federal law generally preempts state law where there is overlap.
8.d. Legislatures cannot change the rules after Election Day.
ECRA requires that elections be administered according to the state laws in place prior to Election Day, including laws governing presidential electors, voting emergencies, and related provisions. Importantly, ECRA also removed language from the old law pertaining to "failed elections" that bad-faith actors relied upon to argue that federal law allowed state legislatures to step in after the election was over and appoint their own presidential electors, potentially overturning the will of the voters.
8.e. ECRA strengthens the role of courts.
The new law gives the courts the last word over disputes regarding a state's presidential election results, including any needed changes to the state's Certificate of Ascertainment. It also establishes a process for aggrieved presidential or vice-presidential candidates to bring cases before three-judge federal district courts.
—————
CONTEXT: Do Americans vote for the President, or for the electors?
Actually, under the somewhat convoluted provisions of the Electoral College, and reflected in Wisconsin law, Americans technically vote for the electors, who in turn vote for the Presidential and Vice Presidential candidates. Most states deploy a “winner takes all” approach in which all the Electoral College votes are awarded to the ticket that won the popular vote in that state. Two states (Maine and Nebraska) split a portion of their electoral votes by congressional district.
—————
The new federal law addresses vulnerabilities in the presidential election process that were exposed by events following the 2020 election. ECRA clarified several procedures that had been ambiguous under federal law, including that the Vice President’s role in counting electoral votes is “solely ministerial.” Because the presidential election is administered by the states, ECRA also impacted aspects of state law (described below).
8.b. ECRA aims to prevent unsanctioned electors and related problems with presidential elections by clarifying details about the official submission to Congress of each state’s presidential electoral count.
Under ECRA, the governor must issue a state’s Certificate of Ascertainment of Appointment of Electors, unless state law explicitly delegates that duty to another executive official. ECRA also specifies that each certificate must contain:
- The names of the state’s electors
- The number of popular votes won in that state by each of the presidential candidates’ electors (see below, “Do Americans vote for the President, or the electors?”)
- Authenticity elements, such as the seal of the State and at least one security feature
Then, when those electors hold their official meeting, they sign and submit a different certificate of votes delineating the electoral college votes for President and Vice President.
In addition to these federal requirements, 33 states including Wisconsin have passed laws to prevent unsanctioned or “faithless” electors in the presidential election process.
—————
CONTEXT: 2020 “fake electors” highlighted the need for ECRA
In 2020, after it became clear that former President Donald Trump’s multiple lawsuits contesting the election results lacked evidentiary merit to alter the outcome, he and his allies assembled their own slates of presidential electors in seven states where Trump did not win. Those unsanctioned electors met the same day as the legitimate electors, cast votes for Trump, and submitted to Congress competing Certificates of Ascertainment. President Trump began a pressure campaign to urge then-Vice President Mike Pence to discard the actual results from those seven states, and instead accept the fraudulent ones during the January 6, 2021, vote counting hearing. Had the Vice President done so, and had enough members of Congress gone along, President Joe Biden would have fallen short of the 270-vote Electoral College majority.
—————
8.c. ECRA clarifies the timeline for the presidential post-election process, with implications for states.
This timeline includes a new mandatory deadline for issuing the Certificate of Ascertainment, a new deadline for court intervention, and an updated date for the electors to meet and cast their votes. As a result, many intermediate state deadlines (such as vote counting, recounts, and audits) may need to be updated to comply with the new mandatory deadlines. Some states have updated their laws to reflect this timeline. Although Wisconsin is not among them, federal law generally preempts state law where there is overlap.
8.d. Legislatures cannot change the rules after Election Day.
ECRA requires that elections be administered according to the state laws in place prior to Election Day, including laws governing presidential electors, voting emergencies, and related provisions. Importantly, ECRA also removed language from the old law pertaining to "failed elections" that bad-faith actors relied upon to argue that federal law allowed state legislatures to step in after the election was over and appoint their own presidential electors, potentially overturning the will of the voters.
8.e. ECRA strengthens the role of courts.
The new law gives the courts the last word over disputes regarding a state's presidential election results, including any needed changes to the state's Certificate of Ascertainment. It also establishes a process for aggrieved presidential or vice-presidential candidates to bring cases before three-judge federal district courts.
—————
CONTEXT: Do Americans vote for the President, or for the electors?
Actually, under the somewhat convoluted provisions of the Electoral College, and reflected in Wisconsin law, Americans technically vote for the electors, who in turn vote for the Presidential and Vice Presidential candidates. Most states deploy a “winner takes all” approach in which all the Electoral College votes are awarded to the ticket that won the popular vote in that state. Two states (Maine and Nebraska) split a portion of their electoral votes by congressional district.
—————
PILLAR 3: Judicial Review
No institution is better suited to consider evidence and render judgment than the judicial system; this is why the rule of law in elections is anchored in recourse to the courts. Many countries give courts responsibility for confirming results of all elections, not just contested ones, and some countries have election tribunals solely dedicated to this task. At a minimum, all democracies allow some level of judicial recourse to challenge potentially unlawful behavior that may have impacted election results.
For a long time, the United States didn’t measure up to that standard. Historically, the role of courts in policing the electoral arena was inconsistent and contested at best. As a result, some egregious election misconduct was allowed to stand.
For a long time, the United States didn’t measure up to that standard. Historically, the role of courts in policing the electoral arena was inconsistent and contested at best. As a result, some egregious election misconduct was allowed to stand.
QUESTION 9: What recourse do candidates or citizens have if they think election officials did something wrong?
9.a. Voters in Wisconsin have limited ability to challenge an election through the court system.
Wisconsin law provides that the results of a recount can be appealed to circuit court. However, the law also states that the recount process, which is only available to candidates, is 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."
For concerns not covered by the recount process, voters and other parties must file an administrative complaint with the Wisconsin Elections Commission. A case that is currently before the State Supreme Court may determine whether a complainant has automatic standing to go to court if the Commission dismisses their complaint.
In addition, parties with standing may bring complaints to federal court, a right which is not restricted by state statute. People or entities challenging elections in federal court have many of the same types of rights as those bringing a lawsuit in a non-election context: They may provide evidence, present arguments, and appeal to a higher court if they lose.
Wisconsin law provides that the results of a recount can be appealed to circuit court. However, the law also states that the recount process, which is only available to candidates, is 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."
For concerns not covered by the recount process, voters and other parties must file an administrative complaint with the Wisconsin Elections Commission. A case that is currently before the State Supreme Court may determine whether a complainant has automatic standing to go to court if the Commission dismisses their complaint.
In addition, parties with standing may bring complaints to federal court, a right which is not restricted by state statute. People or entities challenging elections in federal court have many of the same types of rights as those bringing a lawsuit in a non-election context: They may provide evidence, present arguments, and appeal to a higher court if they lose.
QUESTION 10: What’s required of plaintiffs and what can journalists expect in an election challenge?
10.a. Plaintiffs must be able to show they have standing.
The person bringing the contest or lawsuit must have standing. The source of this requirement—and what plaintiffs must show to meet it—may vary between federal and state court. But, either way, the plaintiff must show a concrete interest in the outcome. For example, a voter or elected official from one state will not have standing to challenge the result in a different state.
10.b. Challenges in state or federal court may include a broad set of allegations and races.Challenges do not always focus on disputing the vote count or challenging election results. Some cases may be brought to ensure voters are treated equally and fairly under the law and seek remedies aside from changing the outcome of a particular race. Although cases like these are typically brought before voting begins, these cases may continue well after the certification of results and the seating of elected officials.
Challenges in state or federal court alleging the violation of state or federal law may implicate multiple races, including state-legislative and federal races. Because this type of litigation can be so varied and complicated, journalists should consult with election law experts who are not involved in the case for help explaining the context and potential implications to readers.
10.c. Courts assume the election results produced through the election process are accurate until plaintiffs can prove otherwise.This starting point is roughly analogous to the concept of “innocent until proven guilty” in criminal cases. Altering the outcome of an election without proof invalidates the votes of the people.
—————
CONTEXT: Fraud is Not Fraud Without Proof
Much of the discussion of flaws in recent elections is based on the theory that because fraud theoretically might have occurred, the election must be suspect. A criminal conviction based solely on what might have happened would never be tolerated, and a change in an election outcome based on similar logic would be deeply unfair to candidates and voters alike.
—————
10.d. The presence of wrongdoing alone is generally not enough to change results.
If an accusation doesn’t involve enough votes to change the results of an election, some cases may still continue on other grounds. For example, even if an accusation of bribery involves only a small number of votes, it is still a serious accusation that, if true, may point to other remedies against the individuals involved.
In practice, most claims against election results do not withstand scrutiny in court and very few election contests result in a decision to change the outcome. Parties may generally appeal to a higher court, although Wisconsin law may preempt this for certain cases and processes.
—————
CONTEXT: Do the Math
Journalists reporting on election cases, especially in the immediate aftermath of the election, should carefully examine the remedy requested by the plaintiffs and petitioners and weigh whether the allegations in the complaint could plausibly justify the remedy. Consider an election that was won by 4000 votes. Even if a plaintiff proves that 1000 voters were improperly turned away from polling stations, overturning the election would be an inappropriate remedy. The judge may rule against the election authority and order process changes or individual penalties, but the results of the election will stand.
—————
The person bringing the contest or lawsuit must have standing. The source of this requirement—and what plaintiffs must show to meet it—may vary between federal and state court. But, either way, the plaintiff must show a concrete interest in the outcome. For example, a voter or elected official from one state will not have standing to challenge the result in a different state.
10.b. Challenges in state or federal court may include a broad set of allegations and races.Challenges do not always focus on disputing the vote count or challenging election results. Some cases may be brought to ensure voters are treated equally and fairly under the law and seek remedies aside from changing the outcome of a particular race. Although cases like these are typically brought before voting begins, these cases may continue well after the certification of results and the seating of elected officials.
Challenges in state or federal court alleging the violation of state or federal law may implicate multiple races, including state-legislative and federal races. Because this type of litigation can be so varied and complicated, journalists should consult with election law experts who are not involved in the case for help explaining the context and potential implications to readers.
10.c. Courts assume the election results produced through the election process are accurate until plaintiffs can prove otherwise.This starting point is roughly analogous to the concept of “innocent until proven guilty” in criminal cases. Altering the outcome of an election without proof invalidates the votes of the people.
—————
CONTEXT: Fraud is Not Fraud Without Proof
Much of the discussion of flaws in recent elections is based on the theory that because fraud theoretically might have occurred, the election must be suspect. A criminal conviction based solely on what might have happened would never be tolerated, and a change in an election outcome based on similar logic would be deeply unfair to candidates and voters alike.
—————
10.d. The presence of wrongdoing alone is generally not enough to change results.
If an accusation doesn’t involve enough votes to change the results of an election, some cases may still continue on other grounds. For example, even if an accusation of bribery involves only a small number of votes, it is still a serious accusation that, if true, may point to other remedies against the individuals involved.
In practice, most claims against election results do not withstand scrutiny in court and very few election contests result in a decision to change the outcome. Parties may generally appeal to a higher court, although Wisconsin law may preempt this for certain cases and processes.
—————
CONTEXT: Do the Math
Journalists reporting on election cases, especially in the immediate aftermath of the election, should carefully examine the remedy requested by the plaintiffs and petitioners and weigh whether the allegations in the complaint could plausibly justify the remedy. Consider an election that was won by 4000 votes. Even if a plaintiff proves that 1000 voters were improperly turned away from polling stations, overturning the election would be an inappropriate remedy. The judge may rule against the election authority and order process changes or individual penalties, but the results of the election will stand.
—————
QUESTION 11: Why do some election challenges go to trial while others are dismissed by the judge?
11.a. Dismissal decisions hinge on multiple variables.
Before any case goes to trial, there are typically hearings and motions to determine if the case should be dismissed. A case may be dismissed for many reasons.
Many election-related legal actions are dismissed without going to trial because they fall short of one or more of these standards. Here are some theoretical examples.
Many election challenges in 2020 were dismissed for one or more of the reasons above. (This review of the 2020 presidential election legal challenges by a group of Republican judges and election lawyers summarizes these issues.)
Before any case goes to trial, there are typically hearings and motions to determine if the case should be dismissed. A case may be dismissed for many reasons.
- Jurisdiction: The court may lack the power/authority to hear the claim.
- Standing: The plaintiff may lack the legal right to bring the challenge.
- Venue: The plaintiff may have filed in the wrong court.
- Statement of a claim: There may be insufficient evidence to warrant a trial, or the allegations of the plaintiff may not even describe a violation of law.
- Unreasonable delays (also known as "Laches"): A suit may challenge the rules after the election when it should, instead, have challenged those rules well in advance.
Many election-related legal actions are dismissed without going to trial because they fall short of one or more of these standards. Here are some theoretical examples.
- A voter from one state attempts to challenge an election result in a different state.
- A case brought on the theory that voting equipment could have been connected to the internet but provides no evidence that the equipment ever was, in fact, connected to the internet.
- A challenge calls for overturning an election won by 10,000 votes, based on evidence of errors only affecting one polling station of 100 voters.
Many election challenges in 2020 were dismissed for one or more of the reasons above. (This review of the 2020 presidential election legal challenges by a group of Republican judges and election lawyers summarizes these issues.)
QUESTION 12: What are some of the challenges of reporting on election cases?
12.a. The timelines are tight.
Election contests typically need to be heard and decided quickly, and this is particularly true of presidential elections. The timeline for judicial action in presidential elections is governed in substantial part by the Electoral Count Reform Act, enacted in 2022 in response to the events of January 6, 2021. Cases often involve a sequence of motions and responses that happen in quick succession and can be challenging to explain to the media audience.
12.b. Historically, the legal system is not focused on communicating to the public.
Court rulings typically address questions of law, for example whether a particular statute applies to the circumstances of the case. This can mean that the implication of the decision for the election results are not directly stated.
Challenges that are dismissed without going to trial (discussed above) can often be interpreted as dodging the issue, as technical avoidance of a question that one side sees as a burning issue. In fact, as the examples above illustrate, dismissal often means the plaintiff’s claims are so far-fetched or so unsupported by evidence that an actual trial is not even needed.
Reporters need to learn to “speak court” and press lawyers to give clear, simple explanations of what is going on in order translate decisions into writing that readers can easily understand.
Election contests typically need to be heard and decided quickly, and this is particularly true of presidential elections. The timeline for judicial action in presidential elections is governed in substantial part by the Electoral Count Reform Act, enacted in 2022 in response to the events of January 6, 2021. Cases often involve a sequence of motions and responses that happen in quick succession and can be challenging to explain to the media audience.
12.b. Historically, the legal system is not focused on communicating to the public.
Court rulings typically address questions of law, for example whether a particular statute applies to the circumstances of the case. This can mean that the implication of the decision for the election results are not directly stated.
Challenges that are dismissed without going to trial (discussed above) can often be interpreted as dodging the issue, as technical avoidance of a question that one side sees as a burning issue. In fact, as the examples above illustrate, dismissal often means the plaintiff’s claims are so far-fetched or so unsupported by evidence that an actual trial is not even needed.
Reporters need to learn to “speak court” and press lawyers to give clear, simple explanations of what is going on in order translate decisions into writing that readers can easily understand.
Experts
Ben Ginsberg, Pillars of the Community Co-Chair (national expert)
Jeff Mandell, Law Forward Co-Founder
Ari Mittleman, Keep Our Republic Executive Director
Jennifer Morrell, The Elections Group CEO & Co-Founder (national expert)
Kim Wyman, Bipartisan Policy Center Senior Fellow (national expert)
Jeff Mandell, Law Forward Co-Founder
Ari Mittleman, Keep Our Republic Executive Director
Jennifer Morrell, The Elections Group CEO & Co-Founder (national expert)
Kim Wyman, Bipartisan Policy Center Senior Fellow (national expert)
External Resources
Election Administration Manual
Election Calendar
Certification Processes and Guardrails, provided by the Brennan Center for Justice
VOTE411, a project of the League of Women Voters that provides state-by-state information for everyday voters.
Election Calendar
Certification Processes and Guardrails, provided by the Brennan Center for Justice
VOTE411, a project of the League of Women Voters that provides state-by-state information for everyday voters.
Stay tuned for an events schedule, coming soon.
Date |
Event |
11/5/24 |
County clerks publish all unofficial election returns. |
11/6/24 |
Wisconsin Elections Commission staff selects reporting units and contests to be audited. |
11/7/24 |
Deadline for Elections Commission staff to notify clerks of audit. |
11/8/24 |
Deadline (4:00 p.m.) for electors who voted provisionally to provide missing information to the municipal clerk. |
11/8/24 |
First day for selected municipalities to conduct 2024 voting equipment audit. |
11/11/24 |
Deadline for the Municipal Board of Canvassers to canvass the election, if necessary. |
11/11/24 |
Deadline for clerks in selected municipalities to submit extension request waiver, for cause, for 2024 voting equipment audit. |
11/12/24 |
Deadline for the County Board of Canvassers to convene for the canvass. |
11/19/24 |
Last day for county clerks to deliver statement of county canvass for state and federal offices to Wisconsin Elections Commission. |
11/20/24 |
Last possible day to file petition for a recount for a presidential race. |
11/27/24 |
Deadline for completion of 2024 voting equipment audit. |
12/1/24 |
Last day for chairperson of the Wisconsin Elections Commission to certify the results of the General Election. |
12/17/24 |
Meeting of the Electoral College |
For More Dates See the Wisconsin Elections Commission Calendar
Note: This material should be used for general informational purposes only.
It is provided as a resource to journalists and reflects ERN's research findings at the time of publication. It does not constitute legal advice, nor should it replace independent confirmation.
It is provided as a resource to journalists and reflects ERN's research findings at the time of publication. It does not constitute legal advice, nor should it replace independent confirmation.