The Recall of a School Board Member

Parents and others across the State of Wisconsin, who are frustrated with their school board’s decisions regarding COVID-19 protocols, are threatening to pursue the recall of school board members.  However, the process of recalling a school board member is not an easy feat.  This Legal Update will provide an overview of the laws governing the recall of a member of a Wisconsin public school board.

The requirements for initiating recall efforts are very specific and must be carefully followed.  The laws governing the recall procedure for local elected officials, including school board members, are set forth in Wis. Stat. § 9.10 and Wis. Admin. Code EL Ch. 2. 

The qualified electors of any city, village, town, town sanitary district, or school district may petition for the recall of an incumbent elected official by filing a petition with the same official with whom nomination papers or declarations of candidacy for the office are filed, demanding the recall of the officeholder.  This is a statutory extension of the right to recall congressional, judicial, legislative, or county officials found in the Wisconsin Constitution.

Any school board member, who has served a minimum of one year of the term for which he or she was most recently elected, as of the date of the recall petition, can be recalled.  However, a school board member can only be the subject of a recall election once during a term.  Furthermore, a recall election need not be held if the school board member is scheduled for re-election at a spring election to be held within 6 weeks of the date the recall petition is certified. 

Any qualified elector of the school district may petition for a recall of a school board member.  A qualified elector is a United States citizen, 18 years of age or older, who has resided in the district or jurisdiction for at least 28 days. 

Before circulating a petition for recall of a school board member, the elector (who is referenced as the petitioner in this process) must register with the school board clerk, which is accomplished by filing a Campaign Registration Statement and a Statement of Intent to Circulate a Recall Petition, which includes:

• The petitioner’s intent to circulate a recall petition.
• Name of the school board member for whom recall is sought.
• The reason(s) for the recall, which must be related to the school board member’s official responsibilities.

After the petitioner has filed the required documents, the petitioner may begin circulating the petition and obtaining signatures.

The specific requirements for each signature on the petition to recall a school board member are as follows:

• The signature listed must be that of a qualified elector of the jurisdiction or district represented by the school board member.
• The legible, printed name of the signer.
• The full address, including municipality of residence, of each signer must be listed on the petition and must be within the election district or jurisdiction of the school board member. 
• Each signature must be dated when it is affixed to the petition. 
• The date of the signature must be within 60 days from the date the recall petitioner registered with the school board clerk.  The date of the signature may not be before the date the recall petitioner registered with the board clerk or later than the date of the circulator’s signature in the Certification of Circulator.

Circulation of the recall petition must be completed within 60 days after the petitioner registers with the school board clerk.  The completed petition must be submitted to the school board clerk no later than 5:00 p.m. on the 60th day after the date of registration.  Any signature on a recall petition that is dated, either before the date of registration or more than 60 days after the registration date, is invalid.

In order to be sufficient, the recall petition must contain the signatures of qualified electors equal to at least 25% of the vote cast for the office of Governor at the last General Election held within the same district or jurisdiction as that of the school board member.  The school board clerk is required to determine the sufficiency/insufficiency of the recall petition within 31 days after the petition is submitted. 

During the 31-day period of review by the school board clerk, the school board member facing recall may challenge the sufficiency of the recall petition, which then provides the opportunity for the petitioner to rebut the challenge, and the school board member to reply. 

Once the school board clerk has determined the sufficiency/insufficiency of the petition, the clerk must issue their findings regarding sufficiency/insufficiency in a certification attached to the petition.  This certification must identify the number of petition sheets that were filed and the number of valid signatures. 

Thereafter, any elector (including the petitioner and school board member(s)) may appeal the school board clerk’s determination within 10 days of the date the complainant knew or should have known about it.  To appeal the determination, the complainant must file a written and sworn complaint with the Wisconsin Elections Commission (WEC), who will issue a formal order affirming or reversing the clerk’s determination.  Following the WEC’s order, an appeal may be filed with the applicable circuit court.

If the petition is ultimately deemed sufficient, the recall election is held on the Tuesday of the 6th week commencing after the date on which the certificate was filed, unless that day is a legal holiday, in which case the recall election should be held on the 1st day after that Tuesday which is not a legal holiday.

The school board member facing recall is a candidate in the recall election, without an official nomination, unless the school board member resigns within 10 days after the date of the clerk’s determination.  Any other candidates wishing to be nominated for the school board member’s position must file a campaign registration statement, circulate and file nomination papers, and file a declaration of candidacy with the school board clerk not later than 5:00 p.m. on the 4th Tuesday preceding the election.  If a candidate follows all of these steps, his or her name shall be placed on the ballot at the recall election.

If more than two individuals challenge the current school board member, a recall primary must be held on the date originally set for the recall election, and the new recall election date shall be set for the Tuesday of the 4th week commencing after the recall primary, or if that date is a legal holiday, the first day after that date, which is not a legal holiday.  The two individuals who receive the highest number of votes in the recall primary will be certified to appear on the ballot in the recall election, but if any person receives a majority of the total number of votes cast in the recall primary, a recall election shall not be held.  If the school board member receives a majority of the votes cast, he/she will be retained in office for the remainder of his/her term.  If a challenger receives the majority of the votes cast, the challenger will be elected to serve the remainder of the school board member’s unexpired term.  In such a case, the school board member will continue to perform his/her duties until a certificate of election is issued to the successor. 

Write-in votes are only permitted at a recall primary or a recall election in which no primary is held. 

The candidate receiving a plurality of votes at the recall election or a majority of votes at a primary shall be declared elected for the remainder of the school board member’s term.

The recall of a school board member is a complicated process.  When a school district receives an inquiry about the recall procedure or when a State of Intent to Circulate a Recall Petition is filed with the school board clerk, it is advisable for the District’s Administration and Administrative Assistants to review publications from the WEC, and to consider reaching out to legal counsel for assistance regarding specific questions.