By Margo Kirchner
A judge today refused to dismiss a challenge to the constitutional bail amendments approved by voters in April 2023.
Dane County Circuit Court Judge Rhonda L. Lanford issued her decision from the bench at the end of oral arguments during a Zoom hearing.
Plaintiffs EXPO Wisconsin and WISDOM claim that the Wisconsin Legislature failed to follow proper procedure for placing referendum questions on the ballot because the Legislature delivered the questions to the Wisconsin Elections Commission rather than to Wisconsin county clerks.
A state statute requires that the Legislature file all proposed constitutional amendments or other referendum questions “with the official or agency responsible for preparing the ballots for the election no later than 70 days prior to the election.”
The challenge is about who or what is “the official or agency responsible for preparing the ballots.”
If plaintiffs are correct and county clerks are deemed responsible for preparing the ballots, the Legislature missed the 70-day deadline. The parties agree that the Legislature delivered the questions to the Wisconsin Elections Commission 75 days before the April 4, 2023 election, but the county clerks received them only 68 days before the election.
Defendants include the Wisconsin Elections Commission and its members and administrator. The Wisconsin Legislature intervened in the case as a defendant.
At issue are two ballot questions for amending the state constitution regarding pretrial release and bail. One question asked voters to approve expanded use of conditions imposed on an accused person released before trial. The second question asked voters to allow a court to consider various new factors in imposing cash bail on a person accused of violent crime.
A third, advisory, question is challenged as well. That question asked voters whether able-bodied, childless adults should be required to look for work to be eligible for public benefits.
Plaintiffs filed their case in January 2023 and sought to keep the questions off the April ballot. Lanford denied the plaintiffs’ motion for temporary restraining order in February, allowing the questions to go to voters.
Voters approved the amendments and the advisory question.
The plaintiffs seek a declaration that the voting results regarding the questions are invalid and that the state constitution has not been amended.
The elections commission and its members argued in their motion to dismiss that the plaintiffs lack standing, that regarding statewide referendum questions the elections commission is the responsible agency for preparing ballots, and that, even if not, strict compliance with the 70-day deadline was not required.
The Legislature argued that the court lacks authority to opine on the Legislature’s interpretation and application of the delivery and timing statute—that whether the Legislature complies with its own procedural rule is a matter for the Legislature alone, not the courts. The Legislature then echoed the commission’s arguments that the commission is the proper recipient of statewide referendum questions and that delivery to the commission substantially complied with the statute.
The Legislature added that invalidating the results of the election for “what was, at most, a minor procedural error” would be an extraordinary remedy.
When deciding a motion to dismiss, a judge must look at the facts alleged in a complaint, assume they are true, and view them in the light most favorable to the plaintiff. Lanford found that “the law does support plaintiffs’ assertions in their brief.”
The decision did not address the merits of the proper party for receipt of statewide ballot questions. That issue will be addressed through a motion for summary judgment, with supporting affidavits as evidence.
Plaintiffs are to file their motion for summary judgment and supporting materials by Jan. 5, 2024, with full briefing by all parties to be completed by the end of February.
Lanford set a hearing on the motion for summary judgment for March 19, 2024.
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