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Episode 4: Who gets to vote?

Statewide elections in Wisconsin are regularly close. With it being a presidential election year, the battle over who gets to vote takes center stage.

This is Swing State of the Union — a podcast all about why Wisconsin is so important to U.S. politics.

Today, we’re learning about voting in Wisconsin.

Wisconsin has been among the top five states with the highest voter turnout in nearly every presidential election since 1976. In 2020, the turnout was around 70% of the voting age population.

And turnout has remained relatively high, despite some obstacles that have emerged over the last two decades. New barriers to the ballot box have made it more difficult to vote in Wisconsin, but it wasn’t always that way.

Historically, Wisconsin had been one of the easiest states to vote in compared to other states. But at the state’s founding only white men, and Native men who had denounced their tribal citizenship, were legally allowed to vote. That was expanded to Black men in 1866.

In 1919, Wisconsin became the first state to ratify the 19th Amendment — granting women the right to vote. Barry Burden, a professor of political science and director of the elections research center at UW-Madison, says for most of the state’s history there had been efforts to increase access to the ballot box.

"The first roughly 150 years of Wisconsin's history was about expanding suffrage, making elections more accessible, regulating them in some ways by creating things like the secret ballot, but generally giving the vote to more people. And Wisconsin has had, historically, a very forgiving election system, with things like election day voter registration. And, in fact, until about 20 years ago, no voter registration in much of the state, it was only required in communities that had more than 5,000 people and every other municipality was allowed to have no voter registration. So it was a kind of generous, accommodating system that reflected a lot of the progressive history of the state," Burden says.

There was even a time when non-citizens could vote in the state of Wisconsin, but all that began to change at the end of the 19th century as new waves of immigrants began settling in Wisconsin.

"Some of the concern in the late 1800s was really about Catholic immigrants, about Irish and Italian immigrants, who were coming to the Midwest and natives, or people who had been living in Wisconsin for a while, who were resistant to the influence of the Pope and and had anti-immigrant feelings. And voter registration was one way to keep actually undesirable people from participating in the election; to others, it was a kind of good government reform and all those things ended up coming together in the late 1800s," Burden says.

That push and pull between people attempting to secure elections, and others trying to keep undesirable voters from being able to vote, is a theme that continues today.

We saw it again in the early 2000s, as politicians in the Wisconsin Legislature started to introduce bills that would create new hurdles to voting.

"There were efforts to pass a voter ID requirement in the state in the early 2000s. Those got held up by Gov. Doyle, in particular, who vetoed two or three versions of that bill. There's also some tightening of early voting laws and absentee voting during that time," Burden says.

These new restrictions failed to pass in the early 2000s. But in 2011, then-Gov. Scott Walker signed the voter ID law, creating one of the strictest voter ID requirements in the nation.

The law requires voters to come to the polls with an ID to confirm their identity — but only specific photo IDs qualify, like a driver’s license or a passport. The law presented a number of unique issues. Although many Wisconsinites have these IDs, those who don’t can find it very difficult to get them, especially if they were born out of state. DMVs in rural areas often have very limited hours, and even in urban areas, they can be difficult to access.

Even as the law was introduced, it was known that the impact would be felt disproportionately.

"We know that some groups of people in the population are less likely to have IDs that would be allowed under the law. Young people, people of color, people in urban areas, people with lower incomes are less likely to have driver's licenses, much less likely to have passports or military IDs or the other things that might be used. So there is a disproportionate burden on some groups of voters in the electorate. It's just going to be more costly, effortful process for them," Burden says.

According to Jay Heck, that’s the point. Since 1996, Heck has been the president of Common Cause, an organization that advocates for political reforms on behalf of citizens.

He says voter ID and other laws restricting voting have been an attempt to to make things more difficult for voters who are less likely to vote for Republicans.

"They wanted to make it more difficult for certain segments of the population to be able to vote because they thought maybe that would gain them some advantage. They also began to say that we need to do this to stop people from cheating and from committing voter fraud. Now there isn't voter fraud. It's very difficult, almost impossible to commit voter fraud, because that can be detected. You know you can't vote, for instance, twice. You just can't do that. But if you raise the specter that there's voter fraud, then you create the atmosphere amongst certain segments of the population that there has to be impediments to voting to make it more difficult," Heck says.

Voter ID was challenged and made its way through the courts. After years of litigation, the state began enforcing voter ID in early 2016. But those years in-between were confusing for voters — and that confusion can be a big issue for people as they head to the polls, according to Burden.

"Survey showed that much of the public didn't actually know what the law was, and the funding that had been allocated to the state Elections Commission to do public education around the law when it was passed had dried up by that point, so there weren't robust PSA campaigns and PR efforts run at the state level to inform the public of the rules. And so there had been a couple studies showing that one effect of the law was the law itself, that some people just didn't have ID and were going to have difficulty getting one. But another effect of the law was uncertainty that there were people who didn't know whether the IDs they had would work," Burden says.

And that’s continued. Since the battle over voter ID, Wisconsin has gone on to have many court battles over voter restrictions proposed by Republicans in the Legislature and other lawsuits challenging how the state conducts its elections.

This litigation is often happening very near to the election, which can create a lot of confusion for voters and for elections officials.

"There's litigation and court rulings and other actions, maybe by the Elections Commission that end up changing the rules in the midst of an election year. That might be true this year as well. There are cases pending before the state Supreme Court that could result in some changes before we get to November," Burden says.

Heck says it’s all part of a larger plan to restrict access to the ballot box in Wisconsin, and what he calls voter suppression.

"Forms of photo ID, restricting the amount of time — changing from 10 days to 28 days, the residency requirement that also locks out a number of people from being able to vote, reducing the early voting — used to be three weeks in Milwaukee and Madison and some other places, it's now two weeks, can't vote in absentee ballot the day before the election. So all these things, we call it death by 1,000 cuts that make voting a little bit more difficult, a little more onerous. Those are what I would call forms of voter suppression," Heck says.

But one person’s voter suppression is another’s voter protection. The Wisconsin Institute for Law & Liberty, also known as WILL, has been a driving force behind much of this litigation. Over the past decade, WILL has sued the state over its ballot drop boxes, failing to purge the voter rolls and its use of the National Mail Voter Registration Application.

Will Flanders, the research director for WILL, defends these restrictions as necessary to ensuring the safety of our elections and says voters will find a way to overcome them.

"What we see in 2020 is that elections that galvanized voters, that folks think are very important, they'll find a way to get to the polls. I think, you know, in Wisconsin as well, you know, we have a we have a voter ID law in place, we have a number of regulations in place, some of them that our organization on the legal side has has fought for in court and yet we still saw extremely high turnout relative to the last 40 years in the 2020 election. So I think while, you know, yes, it may be slightly more challenging in a few instances for folks. I think that the overall picture is that, you know, folks who want to vote are finding ways to, and they're able to, even with a more secure process," Flanders says.

He believes if they want to badly enough, voters will overcome these hurdles. But it’s unclear why they’re even necessary. As WILL's investigation of the 2020 election found, voter fraud is incredibly rare.

For Jay Heck with Common Cause, Flanders’ argument doesn’t hold much water.

"People have adjusted, and so organizations like mine are regularly informing people all the hoops they have to jump through in order to be able to vote. But that doesn't mean it's right. It doesn't mean that's the way it should be done," Heck says.

Election-related crimes are very rare in Wisconsin. Since 2012, only around 200 people have been charged with election-related crimes, or 0.000006% of votes. And the main cause, according to Burden, has been confusion.

"Many of the cases, the most common ones are actually people with felony records who are on probation or parole, who do not have voting rights in Wisconsin even though they are not incarcerated, wwho will try to vote and are often given a ballot and allowed to do so. Sometimes parole officers don't even know what the rules are there. So there there are people with felony records who fall into this category, and if a prosecutor can prove that they had intent that they knew what they were doing, sometimes those can result in convictions. Usually those cases are dismissed," Burden says.

Having a felony conviction or being on probation disenfranchises 10,000 of people in Wisconsin.

The voting rules for formerly incarcerated people are incredibly complex and vary from state to state.

There are currently about 60,000 people with felony convictions who can’t vote. About two-thirds of them are on probation or parole — otherwise known as “on-paper.”

So that means in Wisconsin, a state that was decided by around 20,000 votes in the last two presidential elections, more than double that amount of people are unable to vote while on-paper — despite living in our communities and paying taxes.

Carl Fields is the co-chair of the Transformational Justice Task Force for the Racine Interfaith Coalition. He has firsthand experience living in society without voting rights, as a former prisoner and current voting rights advocate.

Sam Woods: I can imagine some people saying that, “If you're incarcerated, you shouldn't be able to vote, whether that's for felony or misdemeanor. “You made a mistake, you're incarcerated for a reason, right?” How do you make the case to someone who has, who thinks along those lines, that, “I'm still a person. I’m still living in society. I should still have a voice in politics.”

Carl Fields: Right. Well, I would say that voter disenfranchisement is person disenfranchisement. And so, whether a person has a strong point of view about voting or not, they are a disenfranchised individual. And so, bringing them back into a community entails a couple of different things. And I tell people all the time, “I appreciate my garbage being picked up on time. I appreciate them doing the job well. I appreciate them not leaving the cans all in the street when they're done. And if I'm paying taxes, which is paying their salary and a couple other systems people's salary, then I would also like to have a say on how that works. If I'm put in a category where I can't do that, then I have a certain level of frustration with that.” And when we talk about the history, there's a racial component that continues to play out. There's a socioeconomic component that continues to have people told that,“You're not smart enough to do this, so you shouldn't have the right to do this.” Wait a minute. But I have the right and obligation to pay the taxes that pays for all these things, but I don't have the right to have also a say in that? Didn't we go to war with the whole country about this sort of thing? It's the cornerstone of who we are, or at least who we say we are. Oh, except for those people who have been convicted of a crime. You still get to stay in the status that we say we've long since left behind us.

Joy Powers: So, looking at, I guess re-infranchisement, this might be what we call it. After incarceration, who is able to vote here in Wisconsin?

Fields: So, after you're done with the system completely and you are discharged, you can then vote. Wisconsin's system has it to where, legally, you can't vote until you have been discharged and are completely done with the system. It is automatic, which is huge because there are a lot of states for which that's not automatic. But it is automatic, once you are done, the day you're done with paper is the day you become an eligible citizen again. And Unlock the Vote! is about a campaign through WISDOM, through EXPO, a couple different other organizations - Free, is having the right to vote when you are home in the community paying taxes, and you need for community systems to work well for you. You should also have a say in that, and we should, for the purposes of rehabilitation and recovery, support that and encourage that. This is how you bring people into community and this is the most powerful voice that one has.

Powers: Do you have to do anything special once you're off paper? It seems like no, or can you just register to vote?

Fields: Correct. And Wisconsin is one of those states for which you don't have to do anything extra. You will, unfortunately, get a particular shpiel that says, “If you've ever been convicted of a felony, even on paper, then if you're voting now and you don't have the right to, it's illegal, you will be charged with felony again, etcetera, etcetera.” I know multiple people who have gotten off paper and within weeks, were, it was voting time, they did so, their name still showed up on this piece of paper that says, “You can't vote” and polls get this piece of paper. And so, people who are manning the polls have a sheet of paper that says, “Oh, you are one of the disenfranchised. You cannot vote.” I would also say that from a community standpoint, we should also fight for them to have the opposite, which is a paper that says, “This person is now done.” If you really want to bring people back, I mean and you want to be fair, you want to bring people back into the community, you want them to have a say. A side note to that honestly though, is that when we talk to politicians from left and right, it's a misconception that everybody who was system impacted will go one way and that way is left. And that is not the case at all. That is not the case at all. I know a whole bunch of conservatives who I was incarcerated with in my 16-year stay who were not Democrat, will never vote Democrat. But they do want fairness and they want the system to operate in a way that works for all. And even they were also acknowledging that that wasn't the case. And I said, “Well, I would like for you to ultimately vote for somebody who's going to bring some dignity and respect to this thing. And that's about it. That's all I can really ask of you.”

Woods: You alluded to that it's not, if these 60,000-plus people that are in Wisconsin that currently cannot vote because of incarceration related reasons could vote, it's not necessarily a blue or red swing...

Fields: Not at all.

Woods: ..but would politics change at all if suddenly those 60,000-plus, people would be able to vote? Because I feel like there's, a there's a perspective there that politicians would listen to if there were 60,000 people that had this experience that are that now can vote.

Fields: It absolutely would change. And one of the reasons is because of the economics tied to this. There are two kinds of economics in my view. And one is the non-voting resident who is in a prison who is counted as a resident of that city or that village or that town, but they have absolutely no say in the voting side of things, of who their representative is going to be. And so, if you have a town that is mostly incarcerated people and very few townsfolk, which is a real scenario, I won't put it out there here, but that is a real scenario, the representative is representing the 4th or the 5th of the people who they can connect with who can vote for them and they don't visit the prison. They don't visit that four-fifths of the people that they represent. They represent them without a say in how that's done and that is terrible.

Summer Murshid believes in the integrity of elections — not out of idealism, but because she’s seen them work time and time again. She is an attorney who volunteers as the head of the Wisconsin Election Protection Legal Coordinating Committee.

"I started in this work 15 years ago, right after I graduated from law school and it was much smaller then. It has grown to this wonderfully effective, robust group of coalition partners who do nonpartisan election work not just on Election Day, but throughout the year," Murshid says.

On election day, she coordinates a roving brigade of election observers who watch polling operations and help troubleshoot issues that come up — things like navigating curbside voting and making sure people have the correct documents to register.

Murshid ’s work in-between elections has grown over those 15 years. She says she’s witnessed the confusion caused by voter ID laws and early voting restrictions.  But in 2020 came a new change.

“Oh since 2020, yeah, it’s become a lot more focused on absentee ballots," Murshid says.

Newscast: "Unprecedented in battleground Wisconsin because of coronavirus, nearly every registered voter will receive an application from the state to request a ballot by mail."

More than half of people who voted in elections that year, voted absentee.

Because of the COVID-19 pandemic, absentee voting use skyrocketed in Wisconsin and in the nation. What had once been used by many to vote when they planned to be out of town, became a necessary method for voting safely.

We’ll revisit the 2020 election year in detail in a future episode. But fallout from that year’s elections, especially regarding absentee ballots, is shaping current discussions about how the 2024 presidential election will be administered.

Patrick Marley is a voting issues reporter for the Washington Post who covered Wisconsin state politics for 18 years as a Milwaukee Journal Sentinel reporter. He explains how states responded to meet this demand in 2020.

"So you had this big expansion of mail voting and early voting in 2020 and then in the years since then, states have made a bunch of other changes now that were out of the height of the pandemic and states have gone in two really different directions. Some made their changes that they had in 2020 permanent or expanded them more than they had been in 2020, and other states have put in place new policies that not only return them to pre-2020 levels, but maybe restrict them further and put in new limits on absentee voting and things like that. So you sort of see these two really different directions," Marley says.

During the 2020 election year, ballot drop boxes were put in place throughout the state, allowing voters to return absentee ballots with minimal chance of contracting COVID. Wisconsin was one of the states that chose to limit access after 2020.

While advocates saw absentee voting and ballot drop boxes as a way of making it easier and safer to vote in 2020, critics saw it as a sketchy late-night dump of votes that appeared to swing Wisconsin’s presidential vote as absentee ballots were submitted.

Newscast: "Around 4:00 Central Time Wednesday morning, Wisconsin went from red to blue and the biggest reason for that change came right here in Milwaukee. After counting all day and night, the City of Milwaukee finalized nearly 170,000 absentee ballots and delivered them to Milwaukee County to be added to the totals. When that happened, Joe Biden surged ahead, overcoming at the time a statewide deficit of more than 100,000 votes."

Election administrators in Wisconsin warned that this might happen. Wisconsin state law dictates that absentee ballots can’t be processed until Election Day, and it took time to process an unprecedented number of absentee ballots cast in cities like Milwaukee and Madison.

Some states allow absentee votes to be processed before Election Day, but Wisconsin does not. There was talk this year in the Wisconsin state Legislature of changing this law to allow processing of absentee ballots before Election Day, in the hopes that this would prevent the kind of late-night swing we saw in 2020.

This bill did not make it past the state Senate.

Attorney Summer Murshid fears that not taking action on this could undermine faith in elections. She says it sets the state up for more late-night election swings that fuel allegations against election administrators.

"My biggest concern is the attempt to call into question the system as a whole. And to allege that our election officials are trying to steal it or rig it. The physical threats to clerks is something I haven't ever seen in this work. And it makes me very nervous because the day-to-day of election work is very smooth and boring. If you're a roving attorney, right? The reports I get are everything's great, moving on to my next polling place. People go in, they vote, and they go about their day. So to have a really enormous conversation about the integrity of the system and to call into question how it works is really hard to hear as a voting rights advocate," Murshid says.

As for absentee ballot dropboxes, they are currently illegal but there is a chance this might change before November’s election.

In 2022, the Wisconsin state Supreme Court ruled that drop boxes were unconstitutional. The 4-3 ruling was carried by conservative justices on the grounds that there was nothing in the state constitution allowing for drop boxes to be anywhere other than election clerk offices.

This could change before the 2024 election, as liberal justices have taken the majority on the court since this ruling. The court is revisiting the 2022 decision, and began hearing oral arguments in May with a decision expected this summer.

But less than six months out from the November election, with false narratives lingering from the 2020 election and possible changes to voting rules coming from the state Supreme Court this summer, the environment is ripe for disinformation.

Jay Heck, the executive director of Common Cause, says that in addition to legal changes that disenfranchise voters, his organization is on the lookout for people looking to take advantage of the confusion to discourage people from voting.

"The thing we're concerned about is the spread of disinformation by people who don't want people to be able to show up at the polling place they want. They'll want to engage in some sort of voter intimidation, spreading false information about who can vote, who can't vote. Disinformation online is a problem. We're looking to combat intimidation at polling places. People who might stand outside a polling place and try to tell people that they can't vote if they don't bring certain forms of ID with them or, you know, if they're trying to register to vote for the first time and try to discourage people from doing that. So those will be things we'll be concerned about," Heck says.

And for those who are questioning the integrity of the electoral process altogether, Murshid has a simple suggestion: come out and see it for yourself.

"Don't just assume that the process is rigged or broken or biased because it's not. It's not, but if you think that you have a concern, read the election observer rules and go observe. Anybody can be an election observer. You have to follow the rules. You have to do it correctly. That if you want to know what happens at central count, they run an amazing observer program at central count. If you want to watch it, go down and watch it because it's democracy at its finest, it's people who are volunteering their time, it's Republicans and Democrats and Independents who really care about the process and are doing good work. So take the initiative to find out what is going to make you feel comfortable in the process and get out there and vote," Murshid says.

We’ve spent a lot of time talking about barriers and access to voting, but you may be wondering: how do you vote in Wisconsin?

As the rules and regulations have become more complicated, many voters have turned to a specific website to learn more about how to vote in Wisconsin: myvote.wi.gov. But here are some helpful facts to start with:

First: who can vote? Only U.S. citizens 18 years old or older can vote in Wisconsin elections. You must be able to prove you have been a resident of the state for at least 30-days. You’ll need to have a photo ID that complies with Wisconsin’s Voter ID law.

That could be a driver’s license, a state-issued ID, a passport, a military ID — along with a few other government-issued photo IDs.

If you have moved within Wisconsin 28 days before an election, you will vote at your new polling place, but you will need to re-register at your new address. If you have moved less than 28 days before an election, you can still vote, but only at your old polling place.

Early voting opens two weeks before Election Day, but can only be done at specific early polling places.

Absentee votes should be returned by mail at least a week before the election or at the election clerk’s office. If you haven’t returned your absentee ballot by Election Day, you can vote in-person at your polling location as you would in any other election.

If you haven’t registered to vote before Election Day, that’s not a problem in Wisconsin. We have same-day registration.

If you have any questions about who or what is on your ballot, if you want to make sure that your ID meets the requirements, and learn where you can vote on Election Day or before — myvote.wi.gov is the place to go.

You can also check out our voter guide at WUWM.com for more voting information.

Statewide elections in Wisconsin are regularly close, and with it being a presidential election year, the battle over who gets to vote often takes center stage. But it’s a battle that isn’t always hashed out on Election Day, but in legislation, debate and court cases, as Patrick Marley explains.

"Everything in Wisconsin, every policy gets litigated. Brad Schimmel, the former attorney general, used to make a joke that in Wisconsin a bill becomes a law becomes a lawsuit. Everything that passes of any significance gets sued over," Marley says.

Whether it’s voter ID or absentee ballot drop boxes, there’s always going to be a fight over who gets to vote because the stakes are so high especially in a swing state like Wisconsin.

In the next episode of Swing State of the Union, we’ll look at polarization in Wisconsin — how politics became so polarized and how politicians often benefit.

"You didn't have this kind of us versus them mentality that was just baked into every single issue. You had a much more complicated political structure here and of course that began to change and I think probably you can go back to, you know, the early 2000s and, you know, post-2010 for when that became really intensely divided, and I was certainly part of that."

Us vs. them, next time on Swing State of the Union.

"Swing State of the Union" is produced by WUWM, Milwaukee’s NPR — a part of the NPR Network. Please subscribe to the "Swing State of the Union" podcast wherever you like to listen.

Sam is a WUWM production assistant for Lake Effect.
Joy is a WUWM host and producer for Lake Effect.