SB 338

Current law allows any person who believes that a violation of the federal Help America Vote Act is occurring or is proposed to occur with respect to an election for national office in this state to file a written verified complaint with the Elections Commission. The person filing the complaint may request a hearing. If a hearing is requested, the commission must make a final determination regarding the merits of the complaint and issue a decision no later than 89 days after receiving the complaint.

The Elections Commission has taken a position that it cannot decide a complaint brought against itself. In 2022, the Wisconsin Supreme Court agreed with that position. See,

Teigen v. Wisconsin Elections Commission

, 2022 WI 64, 33, 403 Wis. 2d 607, 976 N.W.2d 519. The commission recently received a letter from the federal Department of Justice asserting that such a position violates the administrative complaint requirements under the Help America Vote Act.

Under this bill, if the Elections Commission receives a complaint that alleges that the commission itself is violating HAVA, the commission must make a final determination on the merits of the complaint and issue a decision. The bill prohibits the commission from dismissing the complaint simply because the complaint alleges a commission violation.

The bill also provides that if a hearing is requested it must be held in open session and the oral proceedings of the hearing must be recorded by stenographic or electronic means. In addition, the Elections Commission must make a transcript of oral proceedings available for public inspection. Under current law, all records that are distributed or discussed in the course of a meeting or hearing by the commission in open session are available for public inspection.

Under the bill, the commission must transmit to the complainant and all known interested parties an acknowledgment of receipt of the complaint within five business days from the date of its receipt. In addition, if the complainant requests a hearing, a hearing must be held no later than 30 days after the commission receives the complaint. The commission must also make a final determination of all complaints alleging a HAVA violation no later than 89 days after receiving the complaint, regardless of whether the complainant requests a hearing.

Finally, the bill makes changes to the complaint procedures to ensure compliance with HAVA. The bill requires the Elections Commission to examine and investigate all complaints in a uniform and nondiscriminatory manner, as required under HAVA. In addition, if the commission finds that a complaint has merit, the commission must take corrective action to remedy the violation alleged in the complaint. If the commission dismisses the complaint or does not grant the relief requested in the complaint, the person filing the complaint may appeal the commission’s decision to a court of competent jurisdiction. Finally, the bill requires the commission to publish the results of all dismissed complaints on its website and provide such results to the legislature and the standing committees with jurisdiction over elections.