How Wisconsin Republicans are trying to change voting and administration of elections
Updated Feb. 25 at 4:35 p.m. CST
After the last regular floor period of the 2021-2022 legislative session ended late on Thursday night, the Wisconsin Assembly will send a stack of election-related bills to Gov. Tony Evers for his signature.
Most of these bills will be dead on arrival, as the Republican-led Legislature has rushed to pass measures that inhibit voters’ abilities to vote absentee, as well as heighten restrictions on election clerks’ abilities to administer elections and assist voters.
One bill, however, was invalidated the moment it was voted for passage.
A final provision in SB 942, a bill that would require the state elections commission to submit compliance reports to the Legislature’s Joint Committee on Finance, states that SB 942 is void unless a separate measure — SB 934, which pertains to counting absentee ballots — was passed first.
Republicans voted to table SB 934 early during Thursday’s session, and yet knowingly—or unknowingly—still voted to pass SB 942.
Democratic Rep. Evan Goyke of Milwaukee pointed out this discrepancy during a dramatic moment on the Assembly floor.
“Your decision to table and not pass SB 934 voids SB 942. The final sentence in this bill makes this bill void because of something you did earlier. And while I appreciate you saving some veto pens, you did it to yourself. The real issue with all of this, the problem, what this exposes, is that when you go so fast, and when you do things in secret, and you hold a public hearing on a Monday, an executive session on a Tuesday, and a vote on a Thursday, you make mistakes," Goyke said.
Wisconsin Republican lawmakers are pushing more than a dozen election measures through the legislature, including proposed constitutional amendments. They all passed Tuesday in the state Senate.
Republicans say they’re trying to further election integrity, but Democrats and voting rights groups say the bills would suppress voters by making it harder to vote.
The bills are part of a nationwide effort by Republicans to reshape election law after Donald Trump lost the 2020 presidential race and falsely claimed the election was stolen.
Democrats are in the minority in both houses of the state Legislature and can’t prevent the bills from passing. However, Democratic Governor Tony Evers is expected to veto them. Republicans can’t override the veto because they don’t have a supermajority.
The measures come in the waning days of the legislative session and could be sent to Evers by the Assembly on Thursday.
As the Associated Press reports, “the votes this week [are] largely about providing campaign fodderheading into November and setting the stage for what the Legislature in battleground Wisconsin may take up again next year.”
Evers is running for re-election, and the AP notes that: “Republican candidates seeking to take him on have said the 2020 election wasn't conducted fairly, have questioned President Joe Biden's win and called for overhauling how future elections are run in the state.”
The bills range from restricting who can return absentee ballots, to taking decision making away from the state’s non-partisan elections commission and putting it in the hands of the Legislature.
ELECTION BILLS THAT THE SENATE PASSED ON TUESDAY
Assembly Bill 996/Senate Bill 941:
- This measure would give the Legislature, specifically the Joint Committee for Review of Administrative Rules, control over guidance delivered to local election clerks by the bipartisan Wisconsin Elections Commission.
- The bill would give the Joint Committee on Finance, which currently is controlled by the GOP, the final say on how the elections commission spends federal money allocated to the agency.
- Under this bill, legal counsel on the staff of the Wisconsin Elections Commission, which is currently nonpartisan, would have to be partisan, consisting of one attorney appointed by Democrats and the other by Republicans.
Assembly Bill 1000/Senate Bill 942:
- Under the measure, the Wisconsin Elections Commission would have to submit an annual report to the Legislature’s Joint Committee on Finance that describes “in detail all failures” of WEC and the Department of Transportation, Department of Corrections and Department of Health Services to comply with “certain election-related activities.”
- The finance committee could take away one or more full-time positions in the agencies and fine them up to $50,000 per day for “non-compliance” or for providing what the finance committee considers to be erroneous guidance.
Deborah Patel spoke in opposition to the bill at a public hearing before the Assembly Committee on State Affairs Monday. The retired lawyer from River Hills called the proposal a "recipe for failure."
Patel said taking away resources from election officials for small infractions could lead to bigger failures, "and with each failure, partisan politicians gain more control. It's a carefully crafted doom loop where independent election officials lose more and more control to partisan politicians. What is going on here? It's an insidious power grab. It is evil,” she said.
Democratic state Representative Tip McGuire of Kenosha questioned GOP lawmakers about the intersection of the bill with AB 996/SB 941. The latter is the measure that would require that the legal counsel for the state elections commission be partisan.
McGuire asked what would happen if the Joint Committee on Finance goes through an election cycle and decides that things weren’t perfect. He wondered what would happen if that committee decided to strip the state elections commission of a partisan position.
McGuire said the committee could ask: “why don't we remove that Democrat lawyer? And then what we'll have instead is just all of the guidance and opinions that we like…the guidance that Republicans decide to do.”
“What's to stop that from happening?” asked McGuire.
Republican Representative Kevin Petersen of Waupaca responded by saying, "it would be up to the joint finance committee to make those determinations of [full-time] positions or money [to be] removed."
Rick Esenberg, president and general counsel of conservative law firm the Wisconsin Institute for Law and Liberty, says he has some concerns about the way the provision is worded, "in that, just as the separation of powers requires that the Legislature be the body that makes law, it requires that the executive administer it," says Esenberg. "It is not unknown to have funds impounded by the [joint finance committee and Department of Administration], but this seems to go beyond that and requires close scrutiny."
Assembly Bill 1006/Senate Bill 943:
- Would require the state elections commission to submit a weekly report to the Joint Committee for Review of Administrative Rules (JCRAR) about guidance it issues to municipal clerks.
- JCRAR could then require that the commission’s guidance instead go through a formal legislative rule-making process, which can take months or years.
Democrats had harsh words for the bill during the Assembly Committee on State Affairs public hearing. Some complained that the formal rule-making process could make it impossible for election officials to respond to problems in real time, such as when an election is taking place.
Democratic Representative McGuire was concerned that getting a legislative committee involved in election guidance would trigger self-interest, whether the committee is controlled by Republicans or Democrats.
“[The committee is] looking at the correspondence over elections that they themselves are running in. The determination of the rules that you live by, that we live by. That's the problem is that we're on the ballot, guys. It's what we do every two years," McGuire said.
Conservative lawyer Rick Esenberg takes a different approach. He says this bill is in line with the separation of powers. “There is an issue always as to under what circumstances an administrative agency can make rules that that effectively function as law going forward,” says Esenberg.
Esenberg says the issue was at the core of the COVID shutdown orders back in the spring of 2020. He says requiring certain legislative oversight is designed to protect the public from administrative overreach.
Assembly Bill 999/Senate Bill 939: This measure would place new requirements and restrictions on absentee voting. Under the bill:
- People would not be able to register to vote without providing the number of a valid driver's license or identification card, or the last four digits of their Social Security number.
- Absentee voters would need to provide proof of identification for every election.
- Absentee voters would have to return a separate and distinct absentee ballot application from the certificate envelope that voters must seal and sign and have witnessed.
- Any municipal clerk who issues an absentee ballot without having received a completed, signed application would be subject to a Class I felony, punishable by a sentence of up to three and a half years in prison.
- Election officials could not mail absentee ballot applications unless the voter applies for each one.
- Under the bill, as of Wednesday February 23, political parties and legislative campaign committees could send out absentee ballot applications as long as they had a return address of the municipal clerk where the voter is registered to vote
- An absentee ballot would need to be returned by mail or by the voter, a member of the voter’s immediate family, a legal guardian, or another person the voter designates in writing to their municipal clerk. That other person would have to be a registered voter. “Immediate family” would include people who are related as spouses, siblings, a parent and child, grandparent or grandchild. Any person who would violate the prohibition would be subject to a Class I felony, punishable by a sentence of up to three and a half years in prison.
In the Assembly Committee on State Affairs public hearing Monday, this bill’s author, GOP Representative Rick Gundrum of Slinger, told the committee that the bill was about uniformity and transparency in absentee voting.
“The Wisconsin Elections Commission will now be required to provide a uniform absentee ballot request form that must be completed by a voter prior to receiving an absentee ballot. Another change includes expanding photo ID requirements for those who apply for absentee ballots. In doing so, the legislation brings absentee voting in line with in-person voting," Gundrum said.
Deborah Patel of River Hills spoke in opposition of the bill. She said the language is vague about who qualifies as an "immediate family member." She asked whether the "child" must be a blood relative.
Patel accused lawmakers of “slap-dash-drafting.” She noted, “these bills contain ambiguities that are like time bombs that can go off without notice before or after an election, putting the procedure and maybe even the results in question. Is it poor drafting? Or is that intentional?”
Assembly Bill 1005/Senate Bill 934
This bill would allow for the processing of absentee ballots the day before an election, but the results could not be posted until after polls close.
The AP writes, "election clerks have pushed for that change for years, but the measure appears poised to die in the Assembly after Republican Assembly Majority Leader Jim Steineke said it was unlikely to be voted on there."
Assembly Bill 1004/Senate Bill 935:
Among other measures, this bill:
- Would restrict the ability of election clerks to correct mistakes or defects on absentee ballot certificates.
- Require voters or their agents to return absentee ballots to the municipal clerk’s office.
- Place restrictions on employees of nursing homes who serve as personal care voting assistants during a public health emergency.
- Provide criminal penalties for any nursing home worker who “coerces an occupant of the home to apply or not apply for an absentee ballot or to choose a specific candidate or ballot question." The worker would face prosecution for a Class I felony.
- Provide those same criminal penalties for a nursing home worker who coerces an occupant of the home or facility to register or not register to vote.
- Prohibit elections officials from using private grants to fund election administration unless provided for in state law.
Assembly Bill 1002/Senate Bill 937: This measure would overhaul who qualifies as an “Indefinitely Confined Voter” for purposes of receiving absentee ballots automatically.
At the Senate hearing Tuesday, disability rights groups got behind the measure after Republicans agreed to changes that addressed the advocates' concerns about how such voters would register to cast ballots absentee. But Democratic lawmakers objected, saying the current law is better.
GOP state Senator Kathy Bernier of Chippewa Falls authored the bills and has been working to get disability rights advocates to approve them.
Bernier is the chair of the Senate elections committee and a former elections clerk. She says there was “tremendous misunderstanding” in the 2020 election of who qualifies as an indefinitely confined voter.
Her proposal would change the definition to “those who can’t travel independently without a significant burden because of frailty, physically illness or disability" that will last longer than one year.
Other people could still request absentee ballots, but not permanently.
Bernier gave the following analogy: “I will point out that I might have a sore leg or a sore back, which happens often these days, and I don't go and park in the disability parking spot, just because I'm hurtin’ that day. That spot is for the intent of those that have disabilities legally.”
Tami Jackson, public policy analyst for the Wisconsin Board for People with Developmental Disabilities, said at the Assembly Committee on State Affairs hearing that the disability community has had ongoing discussions with Senator Bernier that have been “positive and productive." Jackson did speak out against several other bills.
Assembly Bill 1001/Senate Bill 945:
- This bill would require clerks of circuit courts go notify the appropriate election officials if jury forms or voir dire show the person disqualifies for jury duty because the person is not a U.S. citizen or doesn’t live in that circuit.
Senate Joint Resolution 101:
- This measure would prohibit the use of a donation or grant of private resources for purposes of election administration and specify who may perform tasks related to election administration.
This proposed constitutional amendment that would bar donations from outside groups to help run elections would not be subject to a gubernatorial veto.
It would have to pass in the Legislature this session and next session, and then would be put to voters in a referendum in 2023 or 2024.
The amendment addresses a Republican complaint about grant money that came to Wisconsin in 2020 from the Center for Tech and Civic Life, which is funded by Facebook creator Mark Zuckerberg and his wife, Priscilla Chan. The organization gave money to more than 200 Wisconsin communities, with the state's five largest cities receiving $8.8 million.
Senate Joint Resolution 102:
- This measure asks for a convention of the states to propose an amendment establishing term limits for members of the U.S. House of Representatives and the U.S. Senate.