Section 140.19. Referendum.

 

(1)   General. Based on the secretary's decision under s. ATCP 140.18 , a proposal to adopt, amend or repeal a marketing order may be submitted to a referendum of affected producers or handlers, as provided in s. 96.08 , Stats. No proposal to adopt, amend or repeal a marketing order may be adopted by the department unless the proposal is approved in a referendum of affected producers and handlers. The referendum shall be scheduled and announced as provided in sub. (4) , and be conducted according to the procedures set forth in this section. The results of the referendum shall be determined according to the voting requirement specified in the decision of the secretary under s. ATCP 140.18 (1) (c) .

(2)   Voter eligibility. In a referendum held on a proposal to adopt, amend or repeal a marketing order, the eligible voters shall consist of producers or handlers who are affected by the proposed marketing order, or by the current marketing order which is to be amended or repealed under the proposal. The department may establish the marketing year or years for which the voting eligibility of a producer or handler is to be determined. Each affected producer or handler is entitled to one vote in the referendum. A corporation, partnership, trust, or other entity or association engaged in business as a producer or handler is entitled to only one vote as a producer or handler, except where an incorporated cooperative association casts a bloc vote as provided under sub. (3) . A producer or handler may not vote by proxy or agent, except that the vote of a business entity or association may be cast by its officer, employee or representative. The department may audit the list of affected producers or handlers compiled under s. ATCP 140.15 , or the voting status of any person casting a ballot, to ensure that all producers or handlers appearing on the list or casting ballots are eligible to vote in the referendum. The secretary may require supporting documentation from any person claiming to be an eligible producer or handler.

(3)   Bloc voting.

(a) If the secretary's decision prescribes a referendum voting requirement under s. ATCP 140.18 (1) (c) which allows for possible bloc voting, an incorporated cooperative association engaged in marketing the affected commodity on behalf of the cooperative's affected producer members may cast a bloc vote on behalf of its affected members, as provided in s. 96.08 (3) , Stats. A bloc vote may be cast by the board of directors of the cooperative with the authorization of the cooperative members. A bloc referendum vote may be cast for or against a proposal to adopt, amend or repeal a marketing order. The bloc vote shall be counted as the equivalent of multiple individual votes, according to the number of affected producer members represented in the bloc vote. If production volume is relevant to the referendum voting requirement, the volume of the affected commodity represented by a bloc vote shall be the combined volume produced by the individual producer members represented in the bloc vote. An incorporated cooperative association marketing an affected commodity as the agent of its members, and not as a purchaser, shall exclude from its bloc vote any of its affected producer members for whom a bloc vote will be cast by a second incorporated cooperative association in which the same producers are also members, if the second incorporated cooperative association markets the affected commodity as a purchaser from the producers.

(b) At least 45 days prior to the referendum, an incorporated cooperative association intending to cast a bloc vote shall file the following with the secretary:

1. A copy of the resolution adopted by the cooperative's membership or board of directors authorizing the cooperative to cast a bloc vote in the marketing order referendum on behalf of its members.

2. Proof that the affected producer members of the cooperative have been notified in writing of their right to vote individually and be excluded from the cooperative's bloc vote, as provided under par. (d) .

3. A certified list of cooperative members who qualify as affected producers for purposes of the marketing order and referendum, and for whom the cooperative claims the right to cast a bloc vote in the referendum. The list shall include the names and addresses of the affected producers or handlers in a format specified by the department. At the request of the secretary, the cooperative shall submit documentation to prove that the listed producers are eligible to vote in the marketing order referendum, and that the cooperative is authorized to cast a bloc vote on their behalf.

4. Any other information or documentation required by the secretary in order to determine the validity of the cooperative's bloc vote.

(c) At any time before or during a referendum, the secretary may invalidate the bloc vote of an incorporated cooperative association if the secretary determines that the cooperative has failed to file the information and documentation required under par. (b) .

(d) If an incorporated cooperative association intends to cast a bloc vote in a marketing order referendum, it shall so notify its individual members in writing at least 45 days prior to the referendum. The notice shall further inform the members of their right to vote as individuals and be excluded from the cooperative's bloc vote, as provided under par. (e) . Notice published in an official publication of the cooperative, and distributed to all members of the cooperative, constitutes adequate written notice. Notice need not state whether the cooperative intends to cast its bloc vote for or against the marketing order proposal.

(e) Affected producers who are members of an incorporated cooperative association may, by notifying the secretary in writing during the referendum period, exclude themselves from the cooperative's bloc vote in the referendum, and may cast their votes as individuals. Upon receiving notice from an affected producer, the department shall remove the producer from the list of cooperative members included in the cooperative's bloc vote, and shall mail an individual referendum ballot to the producer.

(f) The bloc vote of an incorporated cooperative association shall be cast within the referendum period prescribed under sub. (4) . The secretary may prescribe a separate ballot for cooperative bloc voting, or the cooperative may cast a bloc vote in the form of a letter addressed to the secretary and sent by certified mail.

(4)   Referendum schedule; announcement.

(a) The referendum on a proposal to adopt, amend or repeal a marketing order shall begin on the date set forth in the secretary's final decision under s. ATCP 140.18 advancing the proposal to referendum. The referendum period during which affected producers or handlers may cast their votes shall extend for at least 14 days.

(b) At least 10 days before the start of the referendum period, the department shall issue a statewide press release announcing the referendum. The department may publish additional notices to affected areas or persons. Notice under this paragraph shall state:

1. The nature and purpose of the referendum.

2. The beginning and ending dates of the referendum period.

3. The class of affected producers or handlers who are eligible to vote in the referendum.

4. The voting requirement under s. 96.08 , Stats., which will be used to determine the results of the referendum.

5. Whether bloc voting by incorporated cooperative associations is permitted in the referendum. If bloc voting is permitted, the notice or announcement shall set forth the procedure by which producer members may be excluded from a cooperative's bloc vote and be permitted to cast their votes individually.

6. Balloting instructions, indicating whether the referendum is to be conducted by mail or electronic communication, or at polling places under sub. (5) (e) . If the referendum is to be conducted at polling places, rather than by mail or electronic communication, the notice of announcement shall give the locations of polling places and the times during which votes may be cast at the polling places.

7. Instructions to eligible producers and handlers for obtaining a ballot if the producer or handler does not receive a ballot by mail from the department.

(5)   Distribution of referendum ballots.

(a) Referendum ballots and related materials shall be prepared and distributed by mail or electronic communication, or at polling places pursuant to par. (e) . Every ballot shall be designed and handled so as to insure the secrecy of the producer's or handler's vote. Ballots shall be accompanied by the instructions required under par. (b) . Every ballot shall be accompanied by a separate certificate, certifying that the producer or handler is eligible to vote in the referendum. No vote is valid unless accompanied by a certificate of eligibility. Ballots and certificates shall be returned together, but shall be designed and handled so that the department removes and separates the certificates from the ballots before any vote can be examined or counted, so that no vote when revealed can be identified with a certificate.

(b) Every referendum ballot shall be accompanied by instructions to the producer or handler. Instructions shall include:

1. An objective statement of the nature and purpose of the referendum.

2. An explanation of voter eligibility requirements for producers or handlers wishing to vote in the referendum.

3. Instructions for entering a vote on the ballot and returning the certificate of eligibility which accompanies the ballot. Instructions shall state that no vote may be counted unless returned with a valid certificate of eligibility.

4. Instructions for reporting the volume of the affected commodity produced or handled by the voter, if the applicable voting requirement under s. 96.08 , Stats., takes volume into consideration. Ballot forms shall be designed and handled so that reported volumes may be tabulated without being identifiable to an individual producer or handler.

5. Instructions for returning the ballot and certificate. If the referendum is to be conducted by mail ballot, the instructions shall include mailing instructions.

6. The time period within which the ballot must be delivered to the department or otherwise cast. Ballots cast by mail shall be postmarked not later than the last day of the referendum period prescribed under sub. (4) (a) . Ballots postmarked after the last day of the referendum period are invalid.

(c) Except as provided in par. (e) , the department shall mail or send by electronic communication a referendum ballot to every producer or handler who is included on the list of affected producers or handlers compiled by the department under s. ATCP 140.15 . The department shall exclude from its mailing list those producers for whom an incorporated cooperative association has been authorized to cast a bloc vote, and who are listed by the cooperative as being represented in the bloc vote. A producer or handler who is not on the department's mailing list, or who did not receive a referendum ballot, may request a ballot from the department. A producer who desires to be excluded from a cooperative's bloc vote may request an individual ballot as provided in sub. (3) (e) . The department may require documentation to verify that any person requesting a ballot is eligible to vote in the referendum.

(d) Ballots mailed to producers or handlers under par. (c) shall be mailed first class unless third class mail is approved by the secretary. Outbound envelopes for third class mail shall contain the statement "FORWARDING AND ADDRESS CORRECTION REQUESTED," or the statement "RETURN POSTAGE GUARANTEED." Producers or handlers to whom ballots are mailed shall be provided with postage paid return envelopes, pre-addressed to the department at a post office box reserved exclusively for the receipt of marketing order referendum and election ballots.

(e) If the secretary determines that it would be unreasonably costly or difficult to conduct a referendum by mail or electronic communication, the secretary may direct that ballots be cast at polling places announced by the secretary as provided in sub. (4) (b) 6. The secretary may further direct that ballots be pre-distributed to producers by mail or electronic communication, rather than at the designated polling places.

(6)   Tabulation of ballots.

(a) Referendum ballots shall be tabulated by the department, according to procedures set forth in this subsection. Before tabulating ballots, the department shall examine voting certificates to determine the validity of each ballot cast. All referenda, including referenda conducted at polling places, shall be conducted so as to exclude ineligible voters and assure the secrecy of individual votes. Certificates of eligibility shall be obtained from all voters in conjunction with the casting of ballots, but shall be separated from all ballots before any vote is examined or counted, so that no vote can be identified with a certificate of eligibility.

(b) A ballot shall be invalidated before being counted if the department determines that:

1. The ballot was not cast within the prescribed referendum period.

2. The person who cast the ballot was not an eligible voter.

3. The certificate of eligibility required to accompany the ballot was not properly returned.

4. The person casting the ballot was included in a valid bloc vote of an incorporated cooperative association, and did not file a timely request to be excluded from the bloc vote.

5. The ballot duplicates another ballot cast by the same person, or the same business entity.

6. The person casting the ballot failed to report the volume of the affected commodity produced or handled by that person, if that information is required by the applicable voting requirement under s. 96.08 , Stats.

7. The ballot was otherwise not properly completed or cast.

(c) Every ballot which is invalidated by the department shall be marked "INVALID," and be subscribed with a notation stating the reason for invalidation. Invalidated ballots shall not be counted in determining the outcome of the referendum but shall be separately counted and recorded by the department as provided in par. (e) .

(d) After the department has excluded all invalid ballots, the department shall record the total number of ballots validly cast, the number of valid ballots cast in favor of the referendum proposal, and the number of valid ballots cast in opposition to the referendum proposal. An unmarked ballot shall not be invalidated if otherwise validly cast, and shall be counted among the total ballots validly cast. If the applicable voting requirement under s. 96.08 , Stats., takes into consideration the volume of the affected commodity produced or handled by each voter, the volume shall be counted accordingly, based on information supplied by the voter on the ballot or on a related form provided to the voter by the department. Based on validly cast ballots counted and recorded, the department shall apply the applicable voting requirement under s. 96.08 , Stats., to determine the result of the referendum.

(e) In addition to recording the validly cast ballots to determine the results of the referendum under par. (d) , the department shall separately record:

1. The total number of ballots cast in the referendum, whether valid or invalid.

2. The total number of invalid ballots cast. The department shall identify the principal reasons for which ballots were invalidated, and shall record the number of ballots invalidated for each principal reason cited.

(7)   Referendum results; announcement; effect. After the results of the referendum are determined, the secretary shall issue a referendum decision certifying the results. If the proposal to adopt, amend or repeal a marketing order is approved by referendum, the department shall proceed toward adopting the proposal by rule, pursuant to ch. 227 , Stats. A proposed rule to adopt, amend or repeal a marketing order is subject to legislative committee review prior to adoption, as provided in ch. 227 , Stats. , and may be submitted for review prior to referendum. If the proposal is disapproved by referendum, the proceedings to adopt the proposal shall be terminated. Referendum results may not be published or disseminated until the secretary's decision is issued.

(8)   Invalidation of referendum by secretary. The secretary may invalidate a referendum if the secretary determines that the outcome of the referendum was significantly affected by electioneering practices of the type prohibited under ch. 12 , Stats. ; by errors or omissions in referendum procedure; or by wrongful claims of voter eligibility. If a referendum is invalidated, the secretary may extend or reschedule the referendum. If the referendum is invalidated because of fraud or prohibited electioneering practices by the sponsors of a marketing order proposal, proceedings to consider the proposal may be terminated.

History: Cr. Register, November, 1985, No. 359 , eff. 12-1-85; CR 07-067 : am. (4) (b) 6., (5) (a), (b) 3., (c), (e), (6) (a) and (b) 3. Register July 2008 No. 631 , eff. 8-1-08.