In the event that an election official refuses to canvass and certify election results, Wisconsin law has several built-in provisions to safeguard the process. Enforcement mechanisms available include a complaint process, a petition for a writ of mandamus, and criminal penalties for officials who do not comply with election law.
If an elector believes that an election official has taken action (or failed to act) in a manner inconsistent with the law related to election administration or conduct of elections, the elector may file a complaint with the Wisconsin Elections Commission (“WEC”). Wis. Stat. Ann. § 5.06(1). The WEC may investigate an election official’s actions or inaction on its own motion, as well. Wis. Stat. Ann. § 5.06(4).
As part of its investigation based on a complaint or on its own motion, the WEC may require the election official to transfer possession of any original documents relevant to the complaint. Wis. Stat. Ann. § 5.06(5). The WEC may also conduct a hearing on the matter if it deems one appropriate. Wis. Stat. Ann. § 5.06(1). Upon completion of the investigation, the WEC has the authority to order the election official to conform their conduct to the law, refrain from taking any action inconsistent with the law, or require the official to correct any action or decision inconsistent with the law. Wis. Stat. Ann. § 5.06(6). The WEC determines the outcome of a complaint by an affirmative vote of at least two thirds of the members. Wis. Stat. Ann. § 5.05(1e).
The election official or the elector who filed the complaint may appeal the WEC’s decision to the Circuit Court within 30 days of the decision. Wis. Stat. Ann. § 5.06(8). An appeal does not stay the effect of the WEC’s decision, unless the Circuit Court so orders. Wis. Stat. Ann. § 5.06(8).
A writ of mandamus is a court order generally used to compel a “lower court or a government officer to perform mandatory or purely ministerial duties correctly.” Black’s Law Dictionary (8th ed. 2004). Under Wisconsin law, a writ of mandamus is an available enforcement remedy when an election official fails to comply with election law. Wis. Stat. Ann. §§ 5.05, 5.07, 5.08.
In addition to filing a complaint with the WEC (discussed above), an elector may file a petition with the District Attorney of the appropriate county alleging that an election official has failed to comply with “any law regulating the conduct of elections.” Wis. Stat. Ann. § 5.08. In the petition, the elector can request “injunctive relief, a writ of mandamus or prohibition or other such legal or equitable relief as may be appropriate to compel compliance with the law.” Wis. Stat. Ann. § 5.08. If the District Attorney declines to act or fails to act upon the petition within 15 days of filing, the elector may file the petition with the Attorney General. Wis. Stat. Ann. § 5.08.
The WEC has the authority to “sue for injunctive relief, a writ of mandamus or prohibition, or other such legal or equitable relief as may be appropriate to enforce any law regulating the conduct of elections … or ensure its proper administration.” Wis. Stat. Ann. § 5.05(1)(d). The WEC brings these actions in the Circuit Court in the county in which the violation occurred. Wis. Stat. Ann. § 5.05(1)(d).
In addition, “whenever a violation of the laws regulating the conduct of elections” occurs, the Attorney General and the District Attorney of the county in which the violation occurs may “sue for injunctive relief, a writ of mandamus or prohibition, or other such legal or equitable relief as may be appropriate to compel compliance with the law.” Wis. Stat. Ann. § 5.07.
Under Wisconsin law, election officials may not willfully neglect or refuse to perform any of their prescribed duties, which include canvassing and certifying election results. Wis. Stat. Ann. § 12.13(2)(a). A violation of this provision is a class I felony. Wis. Stat. Ann. § 12.60(1)(a).