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Lake Districts Must Meet New Commissioner Vote Requirements in 2020

New law requires vote tally to be announced during the annual meeting, provides recount process

By Wisconsin Lakes staff

With disruptions in meeting process already caused by the COVID-19 pandemic this summer, lake districts must also comply with a new law designed to provide some structure to the election of commissioners. Fortunately, the most cumbersome parts of the new process won’t likely be triggered for most districts.

Voting for lake district commissioners has always been a somewhat confusing process not helped by the ambiguity in Chapter 33, the section of Wisconsin law that covers lake districts. While most everyone understood elections occurred at the district’s annual meeting by secret ballot, various different methods for the taking and counting of those votes exist in districts across the state. 2019 Act 99, passed this session by the Legislature, relieves some of that ambiguity while creating some new processes that may surprise many of you. In this post, we’ll take a deep dive into Act 99 and the new process districts must follow in their elections from here on out.

The new law adds an entirely new section to Chapter 33, Sec 33.30(5). It requires all of the following of a district when electing commissioners.

Conducting the election

First, it doubles down on the existing prohibition on absentee ballots and proxy votes (see 33.30(2)(b)) by allowing ballots to be distributed only to the qualified voters “in attendance at the meeting,” and prohibits ballots from being handed out once voting starts (33.30(5)(a)).

Announcing the winner

Second, it requires the ballots to be counted immediately and the results announced during the meeting. The “results” must include a report of the total number of ballots cast as well as the number of votes each candidate received. Each candidate or a designee of the candidate must be allowed to view the counting. All of this was put into place to provide some statutory protection against tampering with the vote count. (33.30(5)(b)).

The Surprise: Recounts!

Finally, the new law sets forth a process for the losing candidate or any elector to request a recount.  Wisconsin Lakes believes the use of the word “elector” and not the phrase “owner or elector” in the statute was the result of a drafting error in the legislation. As the enacted law stands, however, only an elector within the district and not a property owner is entitled to request a recount. The recount request must be made before the meeting in which the election is held is adjourned (33.30(5)(e)), and any request should be recorded in the minutes of the meeting (33.30(5)(c)). How the recount is conducted, however, depends on how many total votes were cast in the election.

Less than 100 votes cast

If less than 100 votes were cast, the process is fairly simple. The ballots are recounted and results reported during  the meeting with the candidates afforded the opportunity to observe the counting. Once two successive recounts are the same, the election is deemed complete. (33.30(5)(c)1). Note that the results must be the same in successive recounts, not just the same results arrived at in two separate countings at some point during the process.  And that initial count is not considered as part of the recount process. 

For example, if in an election it was announced that Bob received 45 votes and Jane received 43, Jane might request a recount. If the first recount showed Jane beating Bob 45-43, the second recount showed them tied, and the third recount showed Jane again winning 45-43, the election would not complete unless the next recount also showed Jane winning 45-43.

100 or more votes

If 100 or more votes are cast, the process is either simpler or more cumbersome depending on how far the loser wants to push the issue.

After the recount is requested, a single recount is conducted and is considered the final result. In this case, there is no need to arrive at two consecutive identical recounts.

But, the election could be extended if the runner-up (presumably meaning the second-place finisher if more than two candidates are in the running) asks for an additional recount. If he or she does, a number of things must happen. First, the request is placed in the minutes. Second, the physical ballots are placed in a container with a tamper-evident seal. Third, the ballots must be delivered within two days to the clerk “of the most populous municipality within the district,” who then has two weeks to conduct a recount and report the results to the secretary of the board. Any candidate or designee has the right to watch this recount on forty-eight hours notice from the municipal clerk. The clerk is authorized to charge the district the “actual cost” of conducting the recount. (33.30(5)(d)).

The statute is silent as to any method for the clerk to conduct the recount or how the eventual results are to be delivered to the district. 

It is also unclear whether, if this longer recount process is put in place, the board should wait to elect officers or do so “immediately after each meeting” as required in 33.29(3)(c).

Why was this law passed?

Act 99 came about after a controversial election at a district in the summer of 2019. District members approached their legislators who agreed to draft a bill. Wisconsin Lakes has long argued that a better defined voting process in the statute itself would be beneficial and many districts listed the ambiguity in the process as needing clarification. While the recount process created in the Act, especially in the instance of a large vote being taken all the way to a municipal clerk is certainly a cumbersome, district elections are not dissimilar to school board or other smaller special purpose unit of government elections except that, because of the addition of property owners to the mix, they are not conducted during normal elections with candidates on ballots like other municipal offices. While this solution might not be the most elegant, Wisconsin Lakes did support this bill and believes it will ensure transparency and confidence in commissioner elections.