Lawsuit challenging cash bail amendments gets hearing in Dane County Circuit Court

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.