The SCOW docket: Giving the Legislature free reign on constitutional amendments, part 2 (the dissent)
As we await opinions from the Supreme Court of Wisconsin's new term, we will go back to a few decisions from last term and crunch them down to size.
Note: This one is a little different. WJI's "SCOW docket" pieces generally include decisions, dissents, and concurrences all in one post. This time, with this case, we are doing it in three: first the decision, then the dissent, then the concurrences. Why? Because this package of writings is extremely important for future ballot questions regarding state constitutional amendments. Besides that, the SCOW decisions are unusually long – 111 pages in all, not counting the cover sheets. Plus, it's a case that WJI cares a lot about.
Instead of allowing each writing justice 10 paragraphs, we are giving the majority opinion writer 18 and each other opinion writer 15. Other than that, the rules remain the same. The "upshot" and "background" sections do not count as part of the paragraph restrictions because of their summary and very necessary nature. We've removed citations 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 and emphasis added by the opinion writer, all of which also are italicized.
The case: Wisconsin Justice Initiative, Inc., et al. v. Wisconsin Elections Commission, et al.
Majority opinion: Justice Brian Hagedorn (42 pages), joined in full by Chief Justice Annette Ziegler and Justices Patience Roggensack and Rebecca Grassl Bradley, joined in part by Justices Rebecca Frank Dallet and Jill J. Karofsky
Concurrence: Grassl Bradley (14 pages), joined by Ziegler and Roggensack
Concurrence: Dallet (32 pages), joined in full by Karofsky, joined in part by Justice Ann Walsh Bradley
Concurrence: Hagedorn (9 pages), joined in part by Dallet
Dissent: Walsh Bradley (14 pages)
Ballot question challenges have been few and far between in the history of our state. Such a challenge reached this court in State ex rel. Ekern v. Zimmerman (1925). There, the court established a test for our review of a ballot question challenge: "it must reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment."
Yet rather than respecting the precedent of a nearly century-old unanimous opinion, the majority charts a new course not requested by either party. Instead of applying the test established in Ekern, the majority conjures its own test, never before stated, much less applied.
Specifically, the majority sets forth that "[a] ballot question could violate [the] constitutional requirement only in the rare circumstance that the question is fundamentally counterfactual such that voters were not asked to approve the actual amendment." In addition to being created by the majority from whole cloth, this new test is unnecessary for the simple reason that we already have a test from Ekern.
The majority arrives at its newly discovered test by tossing precedent to the wind and engaging in an unconvincing search for the "original meaning" of the state constitution's command that the legislature "submit" a proposed amendment to the people. As Justice Dallet's concurrence aptly explains, the endeavor of divining the "original meaning" of a constitutional provision is largely a futile endeavor.
But even setting this aside, the majority's analysis rests on an infirm foundation. It erroneously dismisses the Ekern test, and instead creates and applies a newly-minted test, resulting in an overly permissive approach that risks giving the legislature carte blanche in crafting ballot questions.
I would follow our precedent set forth in Ekern. Applying the Ekern framework, I determine instead that the ballot question here failed to convey "every essential" of the amendment as is required. From the ballot question only, voters would have no idea that the proposed amendment diminishes the rights of criminal defendants in addition to bolstering the rights of crime victims. In my view, the diminution of a defendant's rights previously protected by law, constitutes an "essential" element of the amendment. Because the ballot question failed to accurately represent an essential element of the law to the voters who approved it, I respectfully dissent.
This court in Ekern set forth what the parties refer to as the "every essential" test. It requires that a ballot question "must reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment." As the court of appeals observes in its certification in the present case, this court has not expanded on what it really means for a ballot question to include "every essential" and this case presents an opportunity for the court to explain and apply this court's statement in Ekern.
But instead of taking that opportunity, the majority simply dispenses with Ekern. In the majority's view, the "every essential" test is no test at all, but is instead just an "explanatory statement." Such a characterization would be news to the court in State ex rel. Thomson v. Zimmerman (1953), who noted (although did not decide) a controversy over whether a ballot question "fairly comprised every essential of the amendment." And it most certainly is news to the parties here, who both argued their positions in terms of the "every essential" framework Ekern set forth.
Of note is that no party here asked us to overrule Ekern. Indeed, WEC argued within the confines of Ekern that the ballot question at issue provided "every essential" of the amendment. We have thus been provided no special justification for overruling Ekern. As such, I would maintain the Ekern test. Doing so not only respects the precedent established by the courts who came before us, but in this case furthers the aims of democratic governance. Making sure that a ballot question includes "every essential" of an amendment ensures that the public is informed and can "vote intelligently." This is critical to maintaining a democracy.
. . . (T)he ballot question here fails. I begin my analysis with the essential fact, recognized by the circuit court, that the victim's rights amendment does more than just increase the rights of crime victims. The majority fails to acknowledge this. Instead, it opines: "all of the provisions of Marsy's Law relate to expanding and defining victim's rights and tend to effect and carry out this general purpose."
Several provisions of the amendment do, in fact, decrease the rights afforded to criminal defendants. For example, the amendment limits the rights of criminal defendants in the following ways:
Shouldn't the voters be informed that a constitutional amendment diminishes the rights of criminal defendants before voting on it? In light of these provisions, it is apparent that the amendment serves dual "purposes," both expanding the rights of victims and diminishing those of the accused.
By any definition of the word, such a change is an "essential" aspect of an amendment. Accordingly, a voter would need to be informed of the change before voting "intelligently." Its lack of inclusion has the significant potential to mislead voters as to the consequences of their votes.
. . . (T)he ballot question is the only text that all voters are guaranteed to see. Those voters who do not research a proposed amendment beforehand will see the ballot question, and only the ballot question, prior to casting their vote. This gives the framing provided by the ballot question considerable power in shaping how voters think about and understand the question presented.
That ballot question language possesses this power to frame the issue in turn dictates that the language provide an accurate picture of the measure that is placed before the voters. To this end, we should maintain the vitality of judicial review in the ballot question context, rather than essentially surrendering our responsibility for judicial review to the legislature. Democracy works best when voters are fully informed. The majority opinion takes a step backward in this endeavor.
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