 By Alexandria Staubach
Wisconsin Justice Initiative and its sibling organization Wisconsin Justice Initiative Action urge you to vote “no” on the November statewide ballot referendum question. The election is less than a month away, and absentee ballots are already out. Once again, Wisconsin voters are asked to approve an amendment to the state’s constitution. The proposed amendment appears to make a seemingly innocuous change, but one that could actually have significant effects. The referendum question reads as follows: “Eligibility to vote. Shall section 1 of article III of the constitution, which deals with suffrage, be amended to provide that only a United States citizen age 18 or older who resides in an election district may vote in an election for national, state, or local office or at a statewide or local referendum?” At best, the proposed amendment is a solution in search of a problem. At worst, it eliminates a guarantee of voting to U.S. citizens and unnecessarily opens Pandora’s box, permitting more restrictive voter identification laws and regulations. The current language in Article III of the state constitution (emphasis added) guarantees the right to vote: “Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.” The proposed amendment would eliminate that guarantee and turn the constitutional provision into a restriction on who can vote. The above provision would be changed to read (emphasis added): “Only a United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district who may vote in an election for national, state, or local office or at a statewide or local referendum.” Noncitizen voting is not an issue in Wisconsin. The federal government in 1996 enacted a law prohibiting noncitizen voting in national federal elections, and Wisconsin and its municipalities have not conferred voting rights on noncitizens. In an interview with WJI, professor Atiba Ellis, a nationally noted voting rights scholar at Case Western Reserve University School of Law, confirmed that noncitizen voting should not be issue in this election, as national laws already restrict voting at the federal level to citizens. Some municipalities in other states have permitted noncitizen voting in local elections. Takoma Park, Maryland, for instance, has permitted noncitizen voting in local elections for 30 years. The number of noncitizens voters there is small: 347 registered noncitizen voters, 72 of whom cast ballots in a 2017 election. Frederick, Maryland, recently became the largest municipality in that state to permit noncitizen voting. New York, Vermont, and Washington, D.C., also have permitted some noncitizen voting. Santa Ana, California, will vote on a measure this November to permit noncitizen voting in local elections. Very little written testimony exists at all in the legislative record regarding this proposed constitutional amendment, and none points to any instance of noncitizen voting in Wisconsin. Notwithstanding that in his written testimony supporting the amendment sponsor Sen. Julian Bradley (R-New Berlin) called noncitizen voting “a real issue,” he pointed to no instances of noncitizen voting in Wisconsin. He instead refenced only the legally permitted noncitizen voting in Maryland and possible noncitizen voting in Washington, D.C., as a basis for the Wisconsin proposed constitutional amendment. “Article III is one of the provisions of the Wisconsin Constitution that protects the fundamental right to vote. There is no need to amend it,” Chris Donahoe, staff counsel at Law Forward, told WJI. So why here? And why now? Ellis suggests that history may be repeating itself. “Before the early 20th century, citizenship wasn’t treated as that strict of a requirement for voting,” he said. “It was the rise of the nativist movement of the early 1900s, as we saw waves of immigration from southern and eastern Europe, when noncitizen voting became an issue.” Then, mass migration and concerns about the American working class becoming more diverse tilted toward populist politics, and states began to pass legislative amendments to limit voting to citizens, he said. “One way of reading this amendment is to stir up the specter of noncitizen voting following that patten of attempting to malign social and political interests that were sympathetic to noncitizens,” Ellis told WJI. Ellis noted a potential harm of the proposed change, as the new language may “frustrate someone from voting who might otherwise be permitted to vote.” Bans on noncitizen voting are increasing. Six states (Alabama, Colorado, Florida, Louisiana, North Dakota, and Ohio) have adopted the same or a similar amendment. The same or similar amendment is also on the ballot in seven other states (Idaho, Iowa, Kentucky, Missouri, North Carolina, Oklahoma, and South Carolina) this November. According to a recent article in The Guardian, Republicans nationwide are trying to make concerns about alleged noncitizen voting a focal point of this election, notwithstanding little to no evidence of noncitizen voting being a problem. Meanwhile, they are ensnaring citizens in their attempts to purge noncitizens from voting rolls, forcing voters to prove their citizenship. The proposed constitutional amendment passed the Legislature in November 2023 along party lines: 21 Republicans for and 10 Democrats against in the Senate, 60 Republicans for and 34 Democrats against in the Assembly. Wisconsin’s Legislature has offered seven proposed constitutional amendments just since the spring of 2023. More than a decade ago Wisconsin joined other states with heavily restrictive voter ID laws, which have already made it more difficult for U.S. citizens, let alone noncitizens, to vote. Some things voters should keep in mind regarding constitutional amendment ballot questions:
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 By Margo Kirchner
In part 1 of this series, Wisconsin Justice Initiative described some general guidelines when considering constitutional amendment ballot questions. Now, on to the two specific ballot questions Wisconsin voters statewide will see in the August 2024 election. Wisconsin Justice Initiative urges “no” votes on the two referendum questions on the Aug. 13 ballot seeking amendments to the Wisconsin Constitution. The two proposed amendments relate to the governor’s spending of state and federal funds. One amendment would prohibit the Legislature from delegating its authority to control spending. The other would prohibit the governor from spending money received by the federal government without the Legislature’s approval or direction. Although the Wisconsin Legislature controls the spending of tax dollars through the budget process and has retained its right to approve funds received under block grants, Wisconsin Statute § 16.54 authorizes the governor to accept and allocate federal funds provided to the state “for the education, the promotion of health, the relief of indigency, the promotion of agriculture or for any other purpose.” With some exceptions, the statute authorizes the governor to designate the state board, commission or department to administer such funds, and the designated board, commission or department to then spend them. The statute permits the governor in his discretion to stipulate to conditions placed on the funds so long as he considers them to be in the public interest. Examples of such funds include the disbursement of federal aid after weather disasters, or, as occurred during the pandemic, federal pandemic-related money under the American Rescue Plan Act of 2021 (ARPA). The statute allows for the acceptance and use of money relatively quickly, as the governor should be able to act more swiftly than the Legislature in a crisis. Generally, the Legislature meets for about 14 or 15 months then takes several months’ break until after the next election. Further, agreement in the Legislature on use of funds would be subject to the political process. Also, the governor is responsible for and accountable to all people in the state, not just constituents in a certain district. He may have a broader perspective on a spending decision for the good of the state than those elected to look out for the interests of a smaller constituency. In the joint resolution calling for the two questions, the Legislature identified the problem it was addressing as follows (emphasis added): “Under current law under the statutes, the governor has authority to accept federal moneys on behalf of the state and to allocate federal moneys without the specific approval or participation of the legislature.” As noted in the resolution itself, the asserted problem arises from current statutes, not from constitutional necessity. Statutes can be changed through statutory amendments; constitutional provisions are not necessary. Rep. Robert Wittke (R-Racine) wrote in support of the amendments that “(b)illions of federal dollars poured into our state in the last couple of years. These supplemental federal funds were important to our state’s economic wellbeing, but only Governor Evers made the determination for allocation of all that money without legislative consideration.” The amendments will “restore a balance to how Wisconsin manages supplemental federal money we receive,” Wittke said. Sen. Howard Marklein (R-Spring Green) wrote in support that the amendments will “increase() accountability, efficiency, and transparency in the expenditure of funds received from the federal government by restoring the legislature’s role in approving those expenditures.” Marklein noted that prior to the 1930s and 1940s the Legislature had “final say over the spending of all funds in the state treasury, no matter their source.” However, as federal money became a greater share of state funds, “legislators abandoned that important responsibility” and gave authority to the governor to allocate federal funds. “I believe the only permanent solution is to have the voters in Wisconsin approve an amendment to the state constitution that will restore the legislature’s role in the allocation of federal funds,” Marklein wrote. During the 2021-2022 legislative session, Gov. Tony Evers vetoed numerous bills in which the Legislature sought to direct ARPA funding. In his veto messages, Evers stated versions of the following: I object to the bill and am vetoing it because it limits the ability to use federal funds with the flexibility necessary to confront the variety of challenges posed by recovery from the COVID−19 global pandemic and respond to Wisconsin’s changing needs over the course of the pandemic and our recovery. In Wisconsin, the role of the Governor to oversee use of federal funds under Section 16.54 of the Wisconsin Statutes is clearly established and has been in place for decades, a fact that was confirmed by legislative leadership in a letter they sent to me in April 2020. In lieu of this bill, I will continue to utilize the authority provided to the Governor under Section 16.54 of the Wisconsin Statutes to oversee use of federal funds and will allocate these funds in a manner that is transparent and consistent with both Wisconsin’s needs and federal law. Wittke’s comments and Evers’ veto statements point to the “problem” these amendments are purported to solve: the governor’s rejection of the Legislature’s attempt to control federal pandemic-related funds. When the most recent Legislature approved sending these ballot questions to voters, only Republicans voted for it. (In the Assembly, 63 Republicans voted in favor and 35 Democrats voted against; in the Senate, 22 Republicans voted in favor and 10 Democrats against.) Wouldn’t a truly good policy benefiting all Wisconsinites for decades to come have had bipartisan support? Question 1 on the August ballot reads: “Delegation of appropriation power. Shall section 35(1) of article IV of the constitution be created to provide that the legislature may not delegate its sole power to determine how moneys shall be appropriated?” Ask yourself why this is necessary. Through the state budget process, the Legislature continues to control the spending of vast amounts of state money. Regarding the delegation of power to appropriate federal money, the Legislature has not been forced to delegate its power. Prior Legislatures chose to do so. The Legislature could change the delegation of power to the governor over federal funds by changing the statute. Why does the Legislature need to prohibit in the constitution its own power of delegation? This appears to be the Legislature attempting to get around the governor’s veto of such a statutory change. Importantly, what if a future Legislature believes that it again should delegate authority to the governor or another official to spend certain money? If the ballot question passes, that future Legislature would be barred by the state constitution from doing so. Thus, this amendment can be seen as an attempt to bar future legislatures from giving power back to the governor in the event the legislature ever has a Democratic majority. Also ask how far this provision, if passed, will reach and whether its effects are known. This amendment appears to go beyond just the statute permitting the governor to direct federal funds, extending to any type of delegation. How much will the Legislature extend its reach into the other branches of government to control how executive agencies or courts spend their budgeted funds? Question 2 reads: “Allocation of federal moneys. Shall section 35(2) of article IV of the constitution be created to prohibit the governor from allocating any federal moneys the governor accepts on behalf of the state without the approval of the legislature by joint resolution or as provided by legislative rule?" This change is aimed specifically at § 16.54. Again, the change could be achieved by changing a statute rather than the state constitution. What is the Legislature’s plan for approving or making rules regarding acceptance and distribution of federal emergency aid, especially when the Legislature is not in session? Will Wisconsinites impacted while the Legislature is on break during the last 10 months of a legislative term need to just make do until the Legislature is back in session? The Legislature met just once in 2020 to address needs during the pandemic. This Legislature broke in March 2024 and is not expected to return in full until January 2025. When the Legislature returns to session, how long will Wisconsinites wait if the Legislature disagrees with the governor’s proposals and the use of funds devolves into politics? Money meant to help Wisconsinites could sit unused while people suffer. And will Wisconsin miss out entirely on federal money that has a deadline for acceptance? If the Legislature is out of session or disagrees with the governor and the deadline passes, what then? Jennifer Giegerich of the Wisconsin Conservation Voters wrote in written testimony to the Legislature before it passed these amendment proposals: The current system allows for a governor to act quickly when it is required. Voters are not asking the legislature to formally change the constitution to create a new level of oversight in these limited circumstances. While there may be a theoretical argument to be made, the reality is it will create unnecessary burden and hoops to jump through for those waiting for funds to rebuild or communities dealing with significant public health issues. On the state government website noting lobbyists’ positions on these amendments, organizations urging a “yes” vote included only the Badger Institute and Wisconsin Manufacturers & Commerce. Numerous organizations lobbied for a “no” vote, including, among others, the League of Women Voters of Wisconsin, Wisconsin Education Association Council, Wisconsin Association of Local Health Departments & Boards, Wisconsin Conservation Voters, Wisconsin Public Health Association, Wisconsin Democracy Campaign, The Nature Conservancy, Clean Wisconsin, and Wisconsin Farmers Union. For all of these reasons, WJI believes the answer to both ballot questions is "no."  The Wisconsin Constitution in the Capitol rotunda in Madison. Photograph by Margo Kirchner. By Margo Kirchner
Voters in the Aug. 13 partisan primary election will see two referendum questions on the ballot seeking approval of constitutional amendments. The proposed amendments relate to the governor’s spending of state and federal funds. One amendment would prohibit the Legislature from delegating its authority to control spending. The other would prohibit the governor from spending money received by the federal government without the Legislature’s approval or direction. Some general rules are helpful to keep in mind whenever you see constitutional amendment ballot questions, as there have been several recently with more to come (seven constitutional amendment questions just between April 2023 and November 2024). First, in a 2023 decision the Wisconsin Supreme Court gave the Legislature free rein to describe proposed amendments vaguely or misleadingly. Justice Brian Hagedorn wrote for the majority that the state constitution’s provision about amendment procedure “does not require any substantive discussion of the amendment in the ballot question submitted to the people. No explanation or summary is constitutionally commanded.” A ballot question would violate the constitution’s requirement that an amendment be submitted to the people for ratification “only in the rare circumstance that the question is fundamentally counterfactual such that voters were not asked to approve the actual amendment,” he said. In a concurring opinion, Justice Rebecca Grassl Bradley wrote that the test boils down to “Did the ballot question contain clearly false information?” She said that the “constitutional purpose of a ballot question . . . is not to educate voters.” “Voters are trusted to inform themselves,” she wrote. (WJI published portions of the justices’ opinions in blog posts here, here, and here. Full disclosure: WJI brought the case at issue, arguing unsuccessfully that the April 2020 ballot question was invalid because voters were insufficiently informed and even misled by its wording.) As a result, voters must beware and must assess proposed amendments carefully. Voters need to know what the constitutional amendments are before they walk into the polls, because the questions themselves may be confusing or misleading. Second, know that constitutional amendment referendum questions are framed and worded for a “yes.” The Legislature has passed these provisions, and the legislators who passed them want you to approve them as well. The question may make you think that voting "yes" is common sense. But what do you think about the Legislature? Do you generally agree or disagree with what it does? Third, look for other reasons why a question is on the ballot. One big reason is an attempt to get around the governor when the Legislature and governor are not from the same party. When the governor and Legislature are in accord, statutes are easier to enact. When the parties differ, the governor can block legislation through veto. Constitutional amendments bypass the governor. What is passed by the Legislature goes to the people rather than to the governor. The governor has staff to vet and analyze proposed laws; the people do not. Today, Republicans in the Legislature may be using the constitutional amendment process to accomplish policy changes in a way that avoids or essentially overrides a veto by Democratic Gov. Tony Evers. But the same could be true if the parties were reversed. Another reason for an amendment ballot question may be an effort by the Legislature to draw voters to the polls in certain elections. By focusing on attention-grabbing issues, the proposed amendment may cause certain people to be sure to vote. So look for the reason for the constitutional amendment. Is there an actual problem being fixed? If the problem isn’t clear or as set forth makes you skeptical, maybe there isn’t a problem to be fixed at all. Fourth, consider whether the state constitution should be filled with provisions that exist better as statutes than in the legal document that is the very base for state law. Constitutions often set forth broad rights, principles, and policies, while statutes get into the finer details. When those finer details are in the state constitution they take longer to reverse if unforeseen problems arise or times change. Constitutional amendments must be approved with identical language by two consecutive Legislatures and then wait for an election. Nothing requires that constitutional amendments be approved by the Legislature only after a study of the long-term impacts or the difficulty of reversing course. The April 2024 amendments changing election law come to mind, as elections officials have recently grappled with whether ballot printing can be outsourced and who exactly can work at polling locations. Look for the next post on the two specific ballot questions voters statewide will see in the August election. Read part 2 here. By Alexandria Staubach
On Wednesday, a Dane County Circuit Court judge heard oral arguments on whether she should dismiss a case challenging two cash-bail constitutional amendments passed by voters in April 2023. The lawsuit asks the court to toss the results of the election on procedural grounds. The plaintiffs allege that the Legislature and Wisconsin Elections Commission (WEC) failed to timely file the Republican-backed resolutions calling for the voter referendums, so the questions should not have appeared on the ballot. One amendment expanded the situations in which cash bail could be imposed, while the other expanded conditions for release on cash bail. Notably, in the same year that Wisconsin voters expanded cash bail, Illinois became the first state to abolish it. The plaintiffs are WISDOM—a statewide network of mainly faith-based organizations—and EXPO Wisconsin. Both groups work to end mass incarceration. They “advocated strenuously” against the amendments, according to court filings. WISDOM and EXPO allege they were deprived of opportunities to organize against the resolutions. State law requires the Legislature to file ballot questions “with the official or agency at least 70 days before the election,” making the deadline for the Apr. 4, 2023 election Jan. 25, 2023. The lawsuit involves questions about who the appropriate “official or agency” is and the stricture of the 70-day rule and whether substantial compliance is enough. WISDOM and EXPO allege the law required the Legislature and WEC to submit ballot questions to county clerks and the Milwaukee County Board of Election Commissioners (MCBEC), as the entities who prepare ballots, on or before the deadline. The ballot questions were not received by county clerks and MCBEC until Jan. 26, 2023. Oral arguments occurred before Judge Rhonda L. Lanford at the summary judgment stage of litigation. Plaintiffs maintain that procedural impropriety motivates the suit. “Those who run our elections have to follow the law,” said Jeff Mandell of the LawForward law firm, which represents EXPO and WISDOM. WEC’s attorney, Charlotte Gibson, argued that the plaintiffs lack standing to bring the lawsuit and that the Legislature substantially complied with the requirements for filing. The 70-day deadline is “not mandatory,” she said. “The gerrymandered Wisconsin Legislature must respect the proper procedures for amending the state constitution,” and “attempts to push through constitutional amendments without the established legislative process are yet another example of legislative overreach,” said Mandell after oral arguments. Many working to end mass incarceration remain strongly opposed to the amendments. "The problem with the recent constitutional and statutory changes on bail is they move us away from an evidence-based system and more toward a system in which the charged offense drives the bail decision,” said criminal defense attorney Craig Johnson (who also is WJI’s board president). “Even a person accused of a serious offense maintains a presumption of innocence. If the evidence shows they carry a low risk of re-offending or missing court, they should be entitled to release. We always have to keep in mind that holding people on cash bail unnecessarily can cost them their jobs, their housing and their families. The cash bail system also unfairly impacts indigent and low-income defendants," Johnson told WJI. The nonprofit LawForward began in 2020 “with a mission of protecting democracy,” according to the firm’s website. Since then it has been involved in litigation regarding voting rights and ballot access, redistricting, and election administration, among other issues. |
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