As the 2024 presidential election nears, it is critical that legal professionals in Wisconsin understand that certifying election results is a mandatory, ministerial duty at all levels of government.
Certification – the statutory process by which officials sign off on the completion of election results – serves as an important but usually uneventful post-election formality.
For as long as our country has held elections, there have been instances of local officials attempting to interfere with election certification to benefit their preferred candidates or political agenda.[1] In response, state legislatures and courts purposefully shaped certification into a ministerial process that left no room for local officials to take matters into their own hands. Wisconsin is no exception.
Election Certification: A Mandatory Legal Duty
In Wisconsin, as in many other states, the law mandates that election results be certified at the conclusion of the canvass. During the canvass, there are various levels of checks and balances involved in tabulating and verifying results. As an example, at each polling location, election inspectors verify the poll lists; compare the number of ballots cast with the poll lists; resolve challenges to ballots; and discard defective ballots.[2]
For absentee ballots, officials verify the voter’s eligibility, confirm the voter has not previously voted, and ensure the ballot meets all other requirements of state law.[3] These procedures safeguard the integrity of the election process by ensuring every ballot is lawfully cast and accounted for.
When election officials “certify” the canvass, they attest with their signatures that the results following this process are a complete and accurate record of all votes cast in the election. Certification occurs at all levels of the election process under the following circumstances:
Local boards of canvassers “shall proceed to canvass publicly all votes received at the polling place … [i]mmediately after the polls close.”[4] Election inspectors “shall make full and accurate return of the votes cast.”[5] And the chief inspector “shall report the returns of the election to the municipal clerk … immediately after the votes are tabulated or counted.”[6]
Municipal clerks “shall report” election returns to the county clerk “no later than 2 hours after the votes are tabulated.[7] And the municipal clerk “shall deliver” all ballots, statements, tally sheets, poll lists, and envelopes to the county clerk by 4 p.m. the day after election day.[8]
County canvassers “shall open and publicly examine the returns” no later than 9 a.m. on the Tuesday after election day.[9] The county canvassing board “shall make” statements showing the number of votes cast for each office.[10] And it “shall deliver or transmit” those statements to the WEC immediately after the canvass (and no later than 14 days after the election).[11]
The Wisconsin Election Commission (WEC) chairperson “shall publicly canvass the returns and make his or her certifications and determinations” for general elections no later than December 1, and thereafter “shall prepare a statement certifying the results of the election.”[12]
Wisconsin statutes make clear the non-discretionary nature of election certification, repeatedly using the word “shall.”[13] Delaying or obstructing this process would not only violate the plain meaning of the text, but also undermine the fundamental principle that in our democracy, voters decide who governs them, not individuals in positions of power.[14]
Election certification, by law, must proceed in accordance with established timelines and procedures, free from political interference or baseless challenges.
History
The non-discretionary nature of certification is deeply rooted in Wisconsin history. As far back as 1855, the Wisconsin Supreme Court made this duty clear in the context of a disputed gubernatorial election.[15]
The court reviewed the statutes setting out the duties of election inspectors, county canvassers, and state canvassers, whose duties included canvassing the votes, preparing statements of the votes, certifying that those statements are correct, and delivering the statements to the appropriate officials.[16]
The court found that these “powers and duties are clearly defined in the statute,” and canvassers were not empowered to act beyond the scope of the statute.[17]
The court then explained that because the canvass is only ministerial in nature, the results of the canvass are not conclusive and can be challenged in court.
“[I]t is the election to an office, and not the canvass of the votes, which determines the right to the office,” and courts therefore have the ability to go beyond the canvass and decide which candidate actually won the most votes.[18]
Proper Legal Avenues
A practitioner may wonder: what if their clients believe there is mistake or fraud in the election? The answer is that Wisconsin’s legal system makes recounts the appropriate and exclusive way to contest election results or the administration of an election.
The recount process outlined in Wis. Stat. § 9.01 provides a detailed method for re-tabulating and challenging election results based on irregularities, defects, or mistakes committed during the voting or canvassing process, including claims of election or voter fraud, a process that ensures accuracy without allowing for indefinite delays.
Any disputes over election outcomes following a recount are adjudicated by the courts, where judges are bound by the rule of law, evidentiary standards, and established legal precedents.
In this light, refusing to certify election returns is not an appropriate mechanism to ensure election integrity. Allegations of irregularities or voter fraud are serious and should be adjudicated in accordance with statutory mandates, evidence, and the law. These institutional guardrails ensure that our election processes can continue to function effectively.
Potential Consequences
Our legal system includes checks and balances to protect against tactics aimed at subverting the election process, including at the point of certification. Attorneys understand that attempts to delay certification or undermine lawful outcomes will ultimately be addressed by courts and other legal authorities, with potential civil and criminal consequences.
For example, officials who refuse to certify elections can face felony charges for “Misconduct in Public Office.” This applies when an election official intentionally fails to perform a mandatory duty as required by law.[19]
Wisconsin law allows also for mandamus actions to “compel a public officer to perform his prescribed duties[.]”[20] The WEC and the Wisconsin Attorney General are expressly authorized to seek mandamus to remedy violations of the elections code,[21] which would include ordering officials to complete their canvasses, report returns, and complete recounts in a timely manner in order to facilitate the completion of the statewide canvass – all mandatory duties.
Voters, too, have standing to seek mandamus relief, given that officials’ delay or refusal to certify election results on time creates a risk that their votes will not be counted.[22]
Election officials who continue to refuse to certify in light of a court order would be subject to contempt sanctions under Chapter 785. Finally, attorneys who advise clients to interfere with the certification process may also face professional consequences.
The Role of Legal Professionals
Attorneys in Wisconsin are sworn to uphold the law and the Constitution. This duty is essential when it comes to matters that directly impact the democratic process, such as election certification. As members of the legal profession, Wisconsin lawyers must see that any disputes are adjudicated through proper legal procedures.
Lawyers, bound by ethical obligation, play a key role in upholding the rule of law and ensuring that the certification process is executed as required by statute.
About the Authors
Edgar Lin (U.W. Law School, 2011) & JoAnna Suriani (NYU 2018) are counsels at Protect Democracy, a cross-ideological nonpartisan, anti-authoritarian group.
Endnotes
[1] See Lauren Miller & Will Wilder, Certification and Non-Discretion: A Guide to Protecting the 2024 Election, 35 Stanford L. & Pol’y R. 1, 23-31 (2024)
[2] Wis. Stat. § 7.51(2).
[3] Wis. Stats. §§ 6.88(3), 7.51(1), 7.52.
[4] Wis. Stat. § 7.51(1).
[5] Wis. Stat. § 7.51(5)(a).
[6] Wis. Stat. § 7.51 (4)(b).
[7] Wis. Stat. § 7.51(4)(c).
[8] Wis. Stat. § 7.51 (4)(b).
[9] Wis. Stat. § 7.60(3).
[10] Wis. Stat. § 7.60(4)(a).
[11] Wis. Stat. § 7.60(5)(a).
[12] Wis. Stat. § 7.70(3).
[13] See Swatek v. County of Dane, 192 Wis. 2d 47, 58-59 (1995) (Wisconsin courts presume that statutes using the word “shall” impose mandatory duties).
[14] See Wis. Stat. § 5.01(1) (the election code “shall be construed to give effect to the will of the electors”); id. at 5.01(3)(a) (“The person receiving the greatest number of legal votes for the office shall be declared elected, and the canvassers shall so determine and certify.”)
[15] See Att’y Gen. ex rel. Bashford v. Barstow, 4 Wis. 567, 675 (1855).
[16] Id. at 794-95.
[17] Id. at 796-97; see also id. at 800 (“[T]hose whose duty it is to canvass the votes are ministerial officers, and are allowed to perform no acts which are not prescribed by the statute[.]”)
[18] Id. at 793, 800.
[19] Wis. Stat. § 946.12(1).
[20] Burns v. City of Madison, 92 Wis. 2d 232, 239 (1979); see also Voces de la Frontera, Inc. v. Clarke, 373 Wis. 2d 348, 357 (2017).
[21] See Wis. Stats. §§ 5.05(d), 5.07
[22] See, e.g., State ex rel. Zignego v. Wisconsin Elections Comm’n, 2021 WI 32, ¶44, 396 Wis. 2d 391, 399 (2021) (allowing voters to bring a mandamus claim, which failed on other grounds).