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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 Alexandria Staubach
In honor of National Voter Registration Day and Constitution Day, WJI is highlighting two new complaints filed by Law Forward. WJI believes that fair and equitable access to the ballot box is a fundamental right of every citizen of Wisconsin. If you still need to register to vote we encourage you to do so here. The Law Forward impact litigation law firm has filed two complaints with the Wisconsin Election Commission (WEC) alleging that the Town of Thornapple and its town clerk violated state and federal law when conducting the April and August elections. The complaints seek orders forcompliance with the law for future elections. Both complaints request expedited review in time for November’s election. State and federal law require access to voting systems that permit those with disabilities to cast their ballots independently and securely. The new complaints to the Wisconsin Election Commission say Thornapple, in Rusk County, is breaking these laws after abandoning electronic voting. According to the complaints, the April election was conducted in Thornapple by paper ballot and then hand counted, with no alternative or accommodation for the visually impaired or those who otherwise cannot privately and independently vote on paper. After the April election, a July 8, 2024 letter from the U.S Department of Justice warned that Rusk County needed “at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities available at each polling place.” Nevertheless, Thornapple's August election took place on paper as well. Wisconsin law provides for compliance reviews for any elector of a jurisdiction or district served by an election official who seeks to contest perceived abuses of election administration. One complaint requests a compliance review on behalf of Erin Webster, a Thornapple voter, who ran for Rusk County Board of Supervisors in the spring election and was provided a paper ballot on which her name did not appear, according to the complaint. Webster cast her ballot electronically in every prior election since 2009, and the town had otherwise used electronic voting machines. Under Wisconsin law, municipalities may elect to administer elections by paper ballot if they have populations below 7,500. Webster’s complaint alleges that the same law that permits paper ballots for municipalities under 7,500 people also prohibits reversion back to hand counting of paper ballots without the WEC’s permission, which Thornapple did not receive. The second compliance review complaint was brought on behalf of Disability Rights Wisconsin. The complaint alleges that federal and state law require a municipality to make voting accessible to voters with disabilities. Further, the complaint alleges, federal law requires any voting system to have a means to notify voters if they have selected more than one candidate for a single office, plus the opportunity to redress the error. “By ceasing to use electronic voting equipment and instead exclusively using paper ballots completed and tabulated by hand, Respondents are no longer using voting systems that are accessible for individuals with disabilities in a manner that provides the same opportunity for access and participation (including privacy and independence) as for others,” the Disability Rights Wisconsin complaint asserts. It mentions visually impaired voters and those who may struggle to fill out a ballot by hand being disenfranchised by the paper system. The Ladysmith News, a local paper in Ladysmith, Wisconsin, this summer covered the Rusk County Board’s decision to count ballots by hand. The article described a July presentation given by Mark Cook of Hand Count Road Show, supposedly a one man “subject matter expert on election vulnerabilities who had traveled the county in his camper trailer, educating folks about election systems and how they can go wrong.” According to the reporter, “a number of local governmental officials were in the audience and saw how Cook showed exactly how voting machines can be easily manipulated.” The Webster complaint is available here. The Disability Rights Complaint is available here. Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed headings, citations, and footnotes from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. In this case, emphasis included in the dissent has been underlined.  Walsh Bradley The case: Priorities USA v. Wisconsin Elections Commission Majority: Ann Walsh Bradley (23 pages), joined by Justices Rebecca Frank Dallet, Jill J. Karofsky, and Janet C. Protasiewicz Dissent: Rebecca Grassl Bradley (24 pages), joined by Chief Justice Annette Ziegler and Justice Brain Hagedorn The upshot The pertinent Wisconsin statute (§ 6.87(4)(b)1.) allows the use of ballot drop boxes. . . . (W)e determine that the court's contrary conclusion in Teigen (v. Wisconsin Elections Commission) was unsound in principle, and as a consequence, we overrule it. Our decision today does not force or require that any municipal clerks use drop boxes. It merely acknowledges what the statute has always meant: that clerks may lawfully utilize secure drop boxes in an exercise of their statutorily-conferred discretion. Background In 2022, the Wisconsin Supreme Court held in the Teigen case that statute § 6.87 precludes the use of drop boxes for the return of absentee ballots to municipal clerks. The petitioners (in the present case) challenged several election procedures. Part of their claim was a contention that "the Wisconsin Supreme Court should revisit its decision in Teigen and confirm that the statute allows the use of drop boxes consistent with the statutory text and constitutional principles." WEC and the legislature moved to dismiss the complaint, arguing that the petitioners did not state a claim upon which relief may be granted. The circuit court denied the motion in part and granted it in part. As relevant here, it agreed with WEC and the legislature and granted dismissal with respect to the drop-box claim. Specifically, the circuit court determined that it "doesn't have the authority to revisit the soundness of the statutory interpretation in Teigen." It continued: "Even if I agree that Teigen was incorrectly decided, I must follow the Teigen precedent and I leave any revisiting of that decision to the Wisconsin Supreme Court." The petitioners appealed and asked the supreme court to take the case, skipping the court of appeals. The supreme court granted the petition to bypass the court of appeals on the single issue of whether to overrule Teigen. The pertinent statute, entitled "Absent voting procedure," sets forth requirements for the return of absentee ballots and the envelopes containing those ballots. The statutory language at the center of this case . . . is not extensive: "The envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots." There is no assertion here that using a drop box is "mailing" a ballot, so we focus on the requirement that the ballot be "delivered in person, to the municipal clerk issuing the ballot or ballots." In Teigen, the majority interpreted this provision to ban drop boxes, concluding that "[a]n absentee ballot must be returned by mail or the voter must personally deliver it to the municipal clerk at the clerk's office or a designated alternate site." Specifically, the Teigen majority highlighted the phrase "to the municipal clerk," determining that "[a]n inanimate object, such as a ballot drop box, cannot be the municipal clerk. At a minimum, accordingly, dropping a ballot into an unattended drop box is not delivery 'to the municipal clerk[.]'" The guts We begin our independent analysis of the language of the statute by observing that the statute requires that a completed absentee ballot be "mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots." In the petitioners' view, delivering a ballot to a drop box is a means of delivering it in person "to the municipal clerk." Taking a contrary position, the Teigen court drew a distinction between an inanimate object like a drop box and a "municipal clerk," a person to whom delivery must be made. Yet, it also dismissed a distinction of even greater import—the distinction our statutes make between a "municipal clerk" and the "municipal clerk's office." *** . . . . Synthesizing . . .information regarding the "office" of the clerk with the statutory definition of "municipal clerk" leads to the conclusion that the two terms are distinct. Put simply, the "municipal clerk" is a person, while the "office of the municipal clerk" is a location. *** By mandating that an absentee ballot be returned not to the "municipal clerk's office," but "to the municipal clerk," the legislature disclaimed the idea that the ballot must be delivered to a specific location and instead embraced delivery of an absentee ballot to a person—the "municipal clerk." Given this, the question then becomes whether delivery to a drop box constitutes delivery "to the municipal clerk" within the meaning of the statute. We conclude that it does. A drop box is set up, maintained, secured, and emptied by the municipal clerk. This is the case even if the drop box is in a location other than the municipal clerk's office. As analyzed, the statute does not specify a location to which a ballot must be returned and requires only that the ballot be delivered to a location the municipal clerk, within his or her discretion, designates. *** Reading "to the municipal clerk" to reference a person rather than a location entrusts some discretion to municipal clerks in how best to conduct elections in their respective jurisdictions. Such discretion is consistent with the statutory scheme as a whole, under which Wisconsin's 1,850 municipal clerks serve the "primary role" in running elections via our "decentralized" system. By endorsing a one size-fits-all approach, the Teigen court arrived at a conclusion that runs counter to the statutory scheme as a whole. *** Had the legislature wanted to impose a rule of statutory construction on the absentee balloting statutes, it certainly knows how to do that. In several other areas of the law, the legislature has explicitly directed that statutes should be either liberally or strictly construed. . . . The legislature did nothing of the sort with regard to absentee balloting, and it would be error to read in such a restriction where none is present. *** "Fidelity to precedent ensures that existing law will not be abandoned lightly. When existing law is open to revision in every case, deciding cases becomes a mere exercise of judicial will, with arbitrary and unpredictable results." Accordingly, any departure from stare decisis (the principle that requires courts to stand by their prior decisions) requires "special justification." However, stare decisis is "neither a straightjacket nor an immutable rule." It is not an "inexorable command." Indeed, "[w]e do more damage to the rule of law by obstinately refusing to admit errors, thereby perpetuating injustice, than by overturning an erroneous decision." *** An underlying purpose of strong adherence to stare decisis where a statute is involved is to protect reliance interests attendant to a precedential opinion. Here, no such reliance interests counsel in favor of upholding an erroneous interpretation of the statute. Teigen has neither fostered reliance nor created a settled body of law. Accordingly, we determine that the court's conclusion in Teigen that the subject statutes prohibit ballot drop boxes was unsound in principle, and as a consequence, we overrule it. Because the complaint sets forth allegations, which if true, would entitle the plaintiff to relief, the motion to dismiss the drop-box claim was wrongly denied.   Grassl Bradley The dissent
The majority again forsakes the rule of law in an attempt to advance its political agenda. The majority began this term by tossing the legislative maps adopted by this court in Johnson v. Wisconsin Elections Commission, for the sole purpose of facilitating "the redistribution of political power in the Wisconsin legislature." The majority ends the term by loosening the legislature's regulations governing the privilege of absentee voting in the hopes of tipping the scales in future elections. Just two years ago, in Teigen v. Wisconsin Elections Commission, this court held "ballot drop boxes are illegal under Wisconsin statutes[,] [and] [a]n absentee ballot must be returned by mail or the voter must personally deliver it to the municipal clerk at the clerk's office or a designated alternate site." Three of the justices making up today's majority dissented. The same dissenters, joined by the newest member of the court, form a majority in this case to overrule Teigen, converting the Teigen dissent into the new majority opinion and holding absentee ballots may be delivered virtually anywhere a municipal clerk designates. To reach this conclusion, the majority misrepresents the court's decision in Teigen, replaces the only reasonable interpretation of the law with a highly implausible one, and tramples the doctrine of stare decisis. I dissent. *** This court has declared: "'Stare decisis is the preferred course of judicial action because it promotes evenhanded, predictable, and consistent development of legal principles,” and "permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals . . . ." The decision-making process of this court cannot "become a mere exercise of judicial will . . . ." When the court "frequent[ly]" and "careless[ly]" overrules its prior decisions, its credibility suffers. *** Our cases have customarily required a "special" or "compelling" justification before overturning a prior decision of this court. In the past, this court has identified five special justifications for overruling precedent: "(1) the law has changed in a way that undermines the prior decision's rationale; (2) there is a "need to make a decision correspond to newly ascertained facts;" (3) our precedent "has become detrimental to coherence and consistency in the law;" (4) the decision is "unsound in principle;" or (5) it is "unworkable in practice." Predictably, the former dissenters, who now find themselves in the majority, abuse the rule of law, replacing the majority opinion in Teigen with Justice Ann Walsh Bradley's dissent. They decree the decision "unsound in principle," emptying the phrase of any meaning and making it merely a mechanism to tip the scales of justice toward their preferred outcomes. *** Although the majority purports to "assum[e]" "'stare decisis concerns are paramount where a court has authoritatively interpreted a statute[,]'" the majority discards that principle as an inconvenient obstacle to its policy preferences. According to the majority, stare decisis receives heightened force only if reliance interests are present because "[a]n underlying purpose of strong adherence to stare decisis where a statute is involved is to protect reliance interests attendant to a precedential opinion." That is a gross misrepresentation of the principle the majority claims to apply. As Justice Brett Kavanaugh recently explained, stare decisis is "comparatively strict" for statutory interpretation cases "because Congress and the President can alter a statutory precedent by enacting new legislation." Like the United States Supreme Court, this court has said stare decisis should receive extra consideration in statutory interpretation cases because the legislature may correct any errors in this court's interpretation. Scholarly sources are in accord. *** Going forward, whether decisions that interpreted statutes receive extra stare decisis protection will depend solely on the will of four and the extent to which respecting or discarding the doctrine favors their preferred outcome. The majority may revive statutory stare decisis whenever the four find it convenient. Such manipulations of the doctrine will only prove what a "result-oriented expedient" today's decision is. *** . . . . Another election statute (§ 6.84) provides a statement of legislative policy for absentee voting: . . . . The legislature finds that the privilege of voting by absentee ballot must be carefully regulated to prevent the potential for fraud or abuse; to prevent overzealous solicitation of absent electors who may prefer not to participate in an election; to prevent undue influence on an absent elector to vote for or against a candidate or to cast a particular vote in a referendum; or other similar abuses. . . . Interpretations directly contradicting this statement that "voting by absentee ballot must be carefully regulated" are less favored than plausible interpretations of the statute in harmony with the statement. *** Aside from mischaracterizing Teigen in order to deem it "unsound in principle," the majority fails to put a dent in Teigen's interpretation of the statute. The pertinent statute requires an absentee ballot to be returned to the municipal clerk one of two ways: "The envelope shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots." Teigen held the statute does not allow offsite, unattended drop boxes. . . . "(M)unicipal clerk" is defined as "the city clerk, town clerk, village clerk and the executive director of the city election commission and their authorized representatives. Where applicable, 'municipal clerk' also includes the clerk of a school district." Interpreting the clear text, Teigen recognized the pertinent statute requires an absentee voter to either send the absentee ballot by mail or "deliver[]" the ballot "to the municipal clerk"—a person, not an inanimate object—"in person." To "deliver[]" something "to" another person, "in person," requires a person-to-person exchange. That is what the statute means, and what it has always been understood to mean. Requiring person-to-person transmission of the ballot . . . obviously precludes the use of unattended drop boxes. *** Nothing relevant has changed since this court decided Teigen two years ago. There have been no intervening changes in the facts or law to warrant overruling the decision. Nor has any evidence emerged demonstrating the decision is detrimental to the coherence of the law or unworkable in practice. The policy-laden arguments against this court's decision in Teigen have not changed either; the majority in this case has simply recycled the dissent in Teigen, rebranding it the opinion of a court. It does not deserve the title. *** Whatever can be said of the majority's decision, it "is not the product of neutral, principled judging." Although the majority attempts to package its disagreements with Teigen as legal, the truth is obvious: The majority disagrees with the decision as a matter of policy and politics, not law. The members of the majority believe using drop boxes is good policy, and one they hope will aid their preferred political party. Teigen upheld the historical meaning of Wis. Stat. § 6.87(4)(b)1., which bars the use of offsite, unmanned drop boxes. The majority in this case overrules Teigen not because it is legally erroneous, but because the majority finds it politically inconvenient. The majority's activism marks another triumph of political power over legal principle in this court. I dissent.  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.  Photograph of the Wisconsin State Capitol by Margo Kirchner By Alexandria Staubach
Last week, conversations about elections loomed large at the Capitol in Madison, involving all three branches of government. Judicial branch On May 13, the Wisconsin Supreme Court heard oral arguments in Priorities, USA v. Wisconsin Elections Commission, a case that could restore the use of drop boxes in Wisconsin after they were banned by the Wisconsin Supreme Court in 2022. Oral arguments hinged on the question of whether state law makers and the law itself effectively banned the use of drop boxes by omitting them from a set of mandatory requirements applicable to absentee ballots. Chicago attorney Misha Tseytlin represented the Wisconsin Legislature as he has in numerous other high stakes cases, including Wisconsin’s most recent redistricting case. Tseytlin argued that “two years ago the Court made this decision,” so the court should be precluded from making any determination in the new case. Justice Janet Protasiewicz highlighted that the Legislature was not part of the case decided two years ago and at the time took a position “assuring federal and state courts that drop boxes were permitted” and “safe and secure.” Plaintiffs Priorities USA and Wisconsin Alliance for Retired Americans argued that the court’s prior interpretation of the law places an unnecessary restriction on casting absentee ballots and in practice is “unworkable.” They argued that under the court’s prior decision municipal clerks and voters are unable to decipher what they can and cannot do. According to the plaintiffs, the law only mandates specific minimum requirements and does not state every possible option for the return of ballots to clerks, leaving such decisions to the Wisconsin Elections Commission (WEC) historically. Justice Rebecca Grassl Bradley asked several times how clerks should be limited in their discretion and what prevented them from administering elections in “whatever way they choose.” WEC’s attorney, Faye Hipsman, responded that regardless of the use of drop boxes, clerks remain bound by all other election statutes, including statutes that require them to “conduct elections that are proper and secure.” Advocates for drop boxes held rallies around the state on the day of the oral arguments. At a rally in Milwaukee, ACLU-Wisconsin Deputy Advocacy Director James Stein said that “Drop boxes make it easy for folks to drop off their ballots hassle-free." He said that “for rural voters who have to drive far and wide to vote on election day, voters in large cities who have limited ballot return options, voters with disabilities, and voters who work long hours or have caregiving responsibilities that make it difficult to return a ballot to a single clerk’s office during shortened hours in the middle of the work day, drop boxes are essential. For voters who receive their absentee ballots late, drop boxes are critical for making sure their ballot can get returned in time to be counted." Stein noted how widespread drop box access was associated with extraordinary voter participation in 2020 and that in the 2022 general election over 760,000 Wisconsinites (almost 30% of voters in that election) cast their ballots absentee. “By fighting for ballot drop boxes, we're fighting for the very soul of our democracy," he said. At a rally in Madison, ACLU-Wisconsin Campaign & Political Manager Conor Miller said, “Over the past decade, we have witnessed several attacks on the fundamental right to vote. . . . “Enough is enough.” Executive branch On May 14, Gov. Tony Evers signed an executive order calling for a special election in the 4th Senate District to fill the seat of Sen. Lena Taylor. Taylor resigned as state senator following her appointment to Milwaukee County Circuit Court in January. The special election will take place on July 30. A primary will occur on July 2 if necessary. Legislative branch On May 16, the Assembly Committee on Campaigns and Elections and the Senate Committee on Shared Revenue, Elections, and Consumer Protection held a joint informational hearing about measures currently in place and investigations that may occur in the future to ensure election integrity. The committees' purpose was to “remove any conjecture that may be out there about what is occurring with elections,” said Rep. Scott Krug (R-Nekoosa). He added that the committee would continue to hold public hearings throughout the summer despite inconvenience to its members, to avoid “another 2020.” The committees heard testimony from the Department of Transportation regarding voter identification cards issued under current law. Ashley Reichert and Lida Tollefson, county clerks in Washington County and Rock County, respectively, discussed systems implemented in their jurisdictions to ensure election integrity. Fond du Lac District Attorney Eric Toney advised the committees that he was unaware of any significant voter fraud. Toney said his office has prosecuted only three voter fraud cases since 2020 and indicated that, at times, voter fraud is a crime that people do not necessarily know they are committing. For instance, persons under felony supervision may vote believing their rights have been restored. Testimony centered around three issues central to the committees: (1) non-citizen voting (2) voting by persons ineligible due to felony convictions, and (3) voting by persons who have been deemed incompetent to exercise the right to vote. Rep. Donna Rozar (R- Marshfield) inquired about the possibility of a shared database of incompetent voters. Tollefson and Reichert indicated that such information is provided by the WEC only to municipalities where incompetent individuals reside. They acknowledged the hypothetical possibility that a person who has been deemed incompetent could move to another municipality and be permitted to vote absent a readily available statewide list. Although not discussed at the hearing, the scenario raised by Rozar is the subject of a lawsuit making its way through the courts, Wisconsin Voter Alliance v. Kristina Secord. Wisconsin Voter Alliance (WVA) brought two failed lawsuits seeking to overturn the results of 2020 presidential election. The Walworth County registrar denied WVA’s open records request for notices sent to election officials (as required by current election law) when a court determines a person is incompetent. Walworth County believes the notices are not subject to disclosure under public records law. WVA argues that the public has an interest in the information, as shown by alleged discrepancies between notices issued to the WEC and the volume of notices published on WEC’s website. A Walworth County Circuit Court judge dismissed the case. The Wisconsin Court of Appeals reversed, ordering the records released, though with birthdates and case numbers redacted. In March, the Supreme Court agreed to review that ruling. City of Milwaukee voters will see on their ballots a contested race for city attorney. Evan Goyke challenges incumbent Tearman Spencer. The election is on April 2. Goyke is a representative in the Wisconsin Assembly. He graduated from Marquette University Law School in 2009. Spencer was elected as city attorney in 2020. He graduated from the University of Wisconsin Law School in 2003. WJI asked each of the candidates to answer a series of questions. The questions asked are patterned after some of those on the job application the governor uses when he is considering judicial appointments Goyke's answers are printed as submitted, without editing or insertion of “(sic)” for errors. Spencer did not respond to WJI's request.  Evan Goyke
Why do you want to become Milwaukee City Attorney? I’ve seen firsthand how the City Attorney’s office can help improve the quality of life for Milwaukee residents. That is only possible if the office is functioning properly. I bring a skill set and vision to the office that can restore the culture and trust inside and outside of the office, return to a standard of excellence, and proactively address real world issues in our city. Name one of the best or worst U.S. or Wisconsin Supreme Court opinions in the last 25 years and explain why you feel that way. While I wish I were writing about a different case, I think I have to select, as the worst U.S. Supreme Court case, Citizens United v. FEC, 558 U.S. 310 (2010). Citizens United devastated the American political system. It’s impossible to quantify the extent of the damage. In Wisconsin, the money that has been allowed to enter our political races has resulted, in part, in a near decade of one party control. I’ve experienced this firsthand during my tenure in the State Legislature and know our state’s inability to experience meaningful progress in areas deeply important to me have their roots in the flawed political process Citizens United has empowered. Describe two of the most significant cases in which you were professionally involved. State v. Moore, 2015 WI 54 I was co-counsel for Mr. Moore and briefed and helped argue the pretrial litigation that was the subject of the State Supreme Court case. Mr. Moore was interrogated by law enforcement and as co-counsel for his defense, I helped challenge the admissibility of the interrogation. Juvenile interrogations should be audio or visually recorded and portions of Mr. Moore’s interrogation were done without recording and a subsequent recording was made in secret by law enforcement. The State Supreme Court ruled wrongly that the interrogation was admissible against Mr. Moore. Bank of New York Mellon v. Carson, 2015 WI 15 While I was not counsel on the Carson case, it was one that I followed closely and was inspiration for and useful during multiple legislative sessions working on mortgage foreclosure legislation. Carson involved so called “zombie foreclosures,” where lenders never sold properties after receiving a foreclosure judgment. This meant the previous homeowners, many of whom no longer lived in the home, remained legally responsible for property taxes and the condition of the property. Carson was a big victory and helped create additional legislation improving the sheriff sale process for mortgage foreclosures. Carson remains an inspiration to me today as I look toward focusing on housing and housing quality as City Attorney. The City Attorney’s Office wrote as an Amicus in Carson. Describe your legal experience as an advocate in criminal litigation, civil litigation, and/or administrative proceedings. My litigation experience is in the criminal justice system. I worked as a trial attorney in the Office of the State Public Defender in Milwaukee County and handled all levels of criminal defense litigation, including administrative hearings. During my time in the State Legislature I have been actively involved in writing laws, or trying to block bad laws, that make changes to how criminal and civil cases are tried in Wisconsin. Describe an instance when you were challenged and had to exhibit courage in the face of adversity or opposition and how you handled that situation. Throughout my elected career I have had to make difficult decisions in the face of opposition. I handle these instances through research, balancing each side of the argument, listening to those directly impacted, and making the best decision possible. I can think of many instances working to reform the criminal justice system within a legislature hostile to the idea, where I pushed for compromise rejected by both the right and left wings of the major political parties. This was particularly the case working to reform Wisconsin’s juvenile justice system, where one party rejected doing anything and the other pushed against plans that did not do enough. Those were difficult, long days/months/years, but I stayed committed to the process I’ve outlined and it ultimately was a positive, meaningful effort for the issues being advanced. What are the greatest obstacles to delivering true justice for the citizens of Milwaukee that you anticipate? What can or should be done about them? I think the greatest barrier to true justice in Milwaukee, as I define it, is poverty. I don’t mean temporary poverty, I mean the generational, segregated, deep poverty that strips hope and opportunity from a person or a community. I say this because I define true justice as an equal opportunity for each person to reach their potential and live a happy, healthy life as they desire. That definition falls well outside just a legal context of justice. I plan to use the power of the City Attorney’s office to work alongside, listen to, and support community organizations, community leaders, and residents to address the challenges that allow generational poverty to persist. I plan to focus on tangible progress at the neighborhood level. I expect many barriers, as change is difficult. I plan to stay committed to residents and local stakeholders and to not allowing opponents, especially those outside our community to distract from solving the issues presented. I plan to be relentless in these pursuits until we achieve meaningful progress.  The Wisconsin Constitution displayed in the State Capitol rotunda. Photograph by Margo Kirchner. By Alexandria Staubach
Wisconsin voters in April will see two referendum questions focused on perceived voting issues. Senate Joint Resolution 78 passed the Legislature in November and will appear on the April 2 ballot as two questions about amending the state constitution. If approved by a majority of voters, the amendments would enshrine in the Wisconsin Constitution bans on private funding for election administration and the involvement of third parties in elections. The proposed amendments passed the Senate and Assembly along party lines. They passed in two successive legislative sessions as required by the state constitution’s amendment process. Constitutional amendment resolutions avoid the governor. They go directly from the Legislature to voters for approval. Rather than creating statutes, which can be changed more easily if they cause problems later, the laws become part of the document underlying all of Wisconsin's government and laws. Republican legislators introduced the resolution in response to grant money supplied by the nonprofit Center for Tech and Civic Life (CTCL) to various election offices around the country during the 2020 election cycle to alleviate the burden of COVID-19 related costs. Mark Zuckerberg, Facebook founder and tech billionaire, supplied more than $400 million to CTCL. As a result, the funds have been referred to as “Zuckerbucks.” The first question addresses those Zuckerbucks: “Use of private funds in election administration. Shall section 7 (1) of article III of the constitution be created to provide that private donations and grants may not be applied for, accepted, expended, or used in connection with the conduct of any primary, election, or referendum?” A “yes” vote will place in the state constitution a prohibition on any level of government in the state applying for or accepting nongovernmental funds or equipment for election administration. Currently, Wisconsin law does not restrict the Wisconsin Election Commission or municipalities from accepting grants or other private money to facilitate the administration of an election. The second question addresses the involvement of outside people in elections: “Election officials. Shall section 7 (2) of article III of the constitution be created to provide that only election officials designated by law may perform tasks in the conduct of primaries, elections, and referendums?” Sen. Eric Wimberger (R-Green Bay) testified about this proposed amendment to Senate and Assembly committees in October 2023. He stated that a stipulation of the CTCL grant money required third-party oversight from Michael Spitzer-Rubenstein, who then worked for the nonprofit National Vote at Home Institute. According to Wimberger, Rubenstein “orchestrated the fall election and acted as a city clerk would act, though paid by CTCL, including managing staff and having access to ballots.” Wimberger’s assertion was part of the larger tent of theories undermining Wisconsin’s 2020 election results. It was debunked by Green Bay’s city attorney, who after investigation said the city was “allowed, but not required, to receive advisory services from persons knowledgeable in various areas of election administration” and that although Rubenstein provided “best practice support” he “had no decision-making authority.” Rubenstein also provided best-practice support in Milwaukee, Racine, Kenosha, Wauwatosa and West Allis. In at least the case of Green Bay, he was hired directly by the city. Current statutory law already provides that elections are administered only by “election officials” and defines an election official as “an individual who is charged with any duties relating to the conduct of an election.” A “yes” vote on question 2 will put the restrictions permitting only election officials designated by law to administer elections into the state constitution. Elections officials include a municipal clerk, who is responsible for conducting elections in a municipality; a chief election inspector and election inspectors, or poll workers, who staff polling places on election day; election registration officials, who carry out registration duties on election day; special voting deputies, who are appointed by the municipal clerk to carry out absentee voting at qualified retirement homes; greeters, who acknowledge voters and assist in answering questions about the polling place but may not participate in any election inspector duties unless acting as a substitute; and tabulators, who aid election inspectors in counting and tallying votes after polls close. All such election officials are required to take and file an oath and record set amounts of training for every term they serve. Two candidates are vying for a seat on the Milwaukee County Circuit Court bench. The seat in Branch 43 is open due to Judge Marshall Murray's decision not to run for re-election. The election is April 2, 2024. Candidate Rochelle Johnson-Bent (below left) is an attorney in the Milwaukee Public Schools system. Candidate Marisabel Cabrera (below right) is an elected Wisconsin Assembly representative and attorney at Cabrera Law Office. The candidates joined WJI in person on Jan. 31, 2024, to introduce themselves and answer questions from attendees. The event was held as a luncheon at Riverfront Pizzeria in Milwaukee, hence the imperfect visual quality and some background noise at times.  Only 10 of 56 circuit court races in Wisconsin this year are contested, and only two races require a primary.
Primaries will be held on Feb. 20 in Kenosha County, where William Michel and Heather Iverson take on recently appointed incumbent Frank Gagliardi, and Winnebago County, where Michael D. Rust, LaKeisha D. Haase, and Eric R. Heywood vie for the open seat created when Judge Teresa Basiliere filed notice that she would not run. The top two vote-getters in each contest will compete against each other in the Spring election on Apr. 2. Contested races with two candidates for the Apr. 2 Spring election:
Wisconsin Justice Initiative has asked all candidates in contested races to complete questionnaires. WJI will print the results verbatim (editing only for length) in the blog in the coming weeks. The two court of appeals judges up for election this year, Pedro Colon in District 1 and JoAnne Kloppenburg in District 4, are running unopposed. |
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