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What are the 2023 April referendums and what do they mean?

Poll worker Pranee Sheskey puts up a sign outside the Warner Park Community Recreation Center for the first day of early voting Tuesday, March 21, 2023, in Madison, Wis.
Morry Gash
/
AP
Poll worker Pranee Sheskey puts up a sign outside the Warner Park Community Recreation Center for the first day of early voting Tuesday, March 21, 2023, in Madison, Wis.

There are four referendums on the 2023 spring election ballot in Milwaukee County — two binding referendums and one advisory measure for statewide voters and one advisory measure for Milwaukee County voters.

Find results from Wisconsin's April 4, 2023 elections for state Supreme Court, Milwaukee Common Council, and other key races here.

The referendum questions are:

“Conditions of release before conviction. Shall section 8 (2) of article I of the constitution be amended to allow a court to impose on an accused person being released before conviction conditions that are designed to protect the community from serious harm?

This is a statewide binding referendum that would amend Wisconsin’s constitution. It would automatically become law if it receives enough votes. The governor cannot veto it if it passes.

So, what’s this question asking?

According to University of Wisconsin assistant law professor Keith Findley, "the question is misleading, really to the point of being dishonest. It’s framed as if courts cannot now impose conditions designed to protect the public. But the court’s authority to impose such protective conditions is not really what’s on the ballot."

Criminal defendants can be currently released before conviction on conditions like paying cash bail, signing a personal recognizance bond, staying drug and alcohol free or abiding by a no-contact order with an accuser.

The Wisconsin Constitution currently allows the judge to consider whether to allow someone to be released “under reasonable conditions designed to assure their appearance in court, protect members of the community from serious bodily harm or prevent the intimidation of witnesses.”

The Wisconsin Legislature would like to change the language in the state constitution to allow judges to consider whether the community will be exposed to “serious harm” instead of “serious bodily harm,” as the determining factor as to what conditions of release to place on a defendant.

In a separate bill, the Republican-controlled Legislature defined “serious harm” and “violent crime.” This bill would only go into effect if the electorate votes yes to the referendums and if Gov. Evers signs it.

The practical effects and policy implications of this amendment to the Wisconsin Constitution are discussed below in the second referendum question on cash bail.

Answering yes = I think the Wisconsin Constitution should be changed so that judges may consider whether a defendant could cause “serious harm” to the community instead of “serious bodily harm” before deciding what conditions of release to place on an accused defendant. Essentially, we should write stricter bail measures into the state constitution.

Answering no = I do not think the Wisconsin Constitution should be changed so that judges may consider whether a defendant could cause “serious harm” to the community instead of “serious bodily harm” before deciding what conditions of release to place on an accused defendant. Essentially, we should not write stricter bail measures into the state constitution.

On April 4, 2023, voters passed the binding conditions of release before conviction referendum.

“Cash bail before conviction. Shall section 8 (2) of article I of the constitution be amended to allow a court to impose cash bail on a person accused of a violent crime based on the totality of the circumstances, including the accused’s previous convictions for a violent crime, the probability that the accused will fail to appear, the need to protect the community from serious harm and prevent witness intimidation, and potential affirmative defenses?”

This is a statewide binding referendum that would amend Wisconsin’s constitution. It would automatically become law if it receives enough votes. The governor cannot veto it if it passes.

Bail is often imposed as a condition of release in Wisconsin. People accused of crimes have to come up with a certain amount of money to be let out of custody. People can also be released on what's called a "signature or personal recognizance" bond, if the judge believes they can promise to come back to court on their own without paying bail.

According to the Brennan Center for Justice, "pretrial detainees make up more than 70% of the U.S. jail population — approximately 536,000 people. Many of them are only there because they can’t afford bail." 

Currently, the Wisconsin Constitution says that cash bail can only be imposed in Wisconsin if a judge thinks it is necessary to ensure an accused’s appearance in court.

This cash bail referendum asks to add into the Wisconsin Constitution that judges may consider what constitutes "the totality of the circumstances," in setting cash bail for "violent offenses." In addition to the probability that the accused will fail to appear, judges would consider a defendant’s potential risk to public safety, the need to prevent intimidation of witnesses, the defendant’s possible affirmative defenses, as well as his or her criminal history.

According to Ion Meyn, assistant professor at the UW Law School, judges are already allowed to detain people accused of certain violent crimes without bail, in order to keep them in custody, if a prosecutor meets the right standard.

He adds that the bail statute, Wis. Stat. Section 969.01, allows judges to consider factors like the dangerousness of a defendant in setting an amount of bail.

Meyn also says, "In practice, bail is often influenced by a pre-trial risk assessment, which blends concerns over defendant’s risk of not appearing with defendant’s criminal history, risk of recidivism, and risk of committing a violent crime." In this way, he says, "Amending the state constitution [as requested in the referendum] will conform the constitution to current practices."

Milwaukee criminal defense attorney Andrew Golden also says this referendum etches into the state constitution what judges are doing anyway. “Every judge already considers imposing conditions to protect the community from [serious] harm," says Golden. "And [judges are all] considering the totality of the circumstances, like they all do that already. This [constitutional amendment] is basically akin to saying that judges should breathe oxygen while sitting on the bench. Well, I don't know of any judge that isn't."

What are the policy effects?

Supporters of the referendum, like Republicans state Rep. Cindi Duchow and state Sen. Van Wanggaard, who sponsored the bail measures, say the legislation will keep communities safe by making it easier for judges to hold people they deem dangerous on high bail amounts.

Professor Meyn gives another angle on the policy implications: "On the one hand, the amendment merely conforms the state constitution to prevailing practices. On the other hand, the amendment may embolden the Legislature to pass more draconian provisions that increase the number of defendants in pre-trial detention." This could be mandatory minimum bail amounts for certain violent crimes.

He says, "What is clear is that the proposed amendment signals that Wisconsin will resist empirical data and will buck legislative trends in other states that are reducing the use, or prohibiting the use, of cash bail."

"Cash bail, especially as to lower-level cases, has been empirically shown to result in higher rates of recidivism, loss employment and the destabilization of families affected by the loss of income and home care provided by defendant," says Meyn.

Answering yes = I think the state constitution should be changed to indicate that when a judge decides whether to require cash bail from a person accused of a violent crime, a judge may consider factors beyond whether the defendant is likely to appear in court. The constitution should say that judges may also consider a defendant’s potential risk to public safety and criminal history, the need to prevent intimidation of witnesses and the defendant’s possible affirmative defenses. Essentially, we should write stricter bail measures into the state constitution.

Answering no = No, I do not think the state constitution should be changed to indicate that when a judge decides whether to require cash bail from a person accused of a violent crime, a judge may consider factors beyond whether the defendant is likely to appear in court. The constitution should not be changed to say that judges may also consider a defendant’s potential risk to public safety and criminal history, the need to prevent intimidation of witnesses and the defendant’s possible affirmative defenses. Essentially, we should not write stricter bail measures into the state constitution.

On April 4, 2023, voters passed the binding cash bail before conviction referendum.

“Shall able-bodied, childless adults be required to look for work in order to receive taxpayer-funded welfare benefits?”

This question is a statewide advisory referendum. It’s like a poll for the Legislature and is non-binding.

Answering yes = I think people without disabilities and children should have to look for work to get welfare assistance.

Answering no = I think people without disabilities and children should not have to look for work to get welfare assistance.

State law already requires many recipients of unemployment benefits or FoodShare (food stamps) to look for jobs.

Democrats have complained that the referendum is a political ploy to get more Republicans to the polls in what is usually a relatively low-turnout spring election. They say GOP legislators are asking the public to weigh in on what is already state law.

Republicans say work requirements for unemployment or other welfare benefits are not sufficiently enforced, as the state deals with worker shortages. They say that this referendum, if passed, could spur additional legislation and enforcement.

Republicans have also passed work-search requirements to receive other welfare benefits, but COVID-19 pandemic restrictions from President Joe Biden’s administration have put those laws on hold.

On April 4, 2023, voters passed the non-binding welfare benefits referendum.

“Should Wisconsin Statute 940.04, which bans abortion at any stage of pregnancy without exception for rape, incest, or health of the patient, be repealed to allow legal access to abortion care?”

This question is an advisory referendum for Milwaukee County. It is like a poll and is non-binding.

Under the 1849 Wisconsin law, it is a felony to perform nearly all abortions.

Answering yes = I think that the current statute in Wisconsin banning abortion except to save the life of the mother should be repealed.

Answering no = I think that the current statute in Wisconsin banning abortion except to save the life of the mother should not be repealed and should remain on the books.

On April 4, 2023, voters passed the non-binding abortion referendum.

Now, let's take a step back to break down referendums in general.

What is a referendum?

A referendum typically refers to any election in which the people vote to approve or reject a specific proposal. Referendums are proposed by the state Legislature and local governments.

There are three main types of referendums — advisory, binding and petition.

What is a binding referendum?

Binding referendums are just that — binding. "If enough people vote for them, they become law," Marquette politics professor Paul Nolette says.

For example, many school referendums are binding.

What’s the process of amending the state’s constitution through a binding referendum?

When the Legislature proposes a constitutional amendment, like the ones being proposed for the April election about conditions of release and cash bail, it has to be passed by a majority of members in both houses as a joint resolution, known as first consideration, and then in identical form by the next session of the Legislature, known as second consideration.

After this, the Legislature submits the proposed constitutional amendment for ratification by a majority of the electorate in a statewide referendum election.

State law requires that constitutional amendments be put before the voters statewide before it can be passed. The electorate has voted to approve 145 out of 197 proposed constitutional amendments in Wisconsin since the Constitution was adopted in 1848.

The governor cannot veto a constitutional amendment.

What is an advisory referendum?

Some referendums are advisory, like the 2023 state ballot measure on welfare and the Milwaukee County ballot measure on abortion. For an advisory referendum, a legislative body puts a proposed measure on the ballot to gauge public opinion.

Advisory referendums don't have any specific policy effect, they are not binding. The referendum doesn't automatically go into law if enough people vote for it, it’s more like a poll, explains professor Nolette.

State or local legislative bodies are in charge of these referendums — the development, the wording and ultimately, getting it on the ballot, he shares. There have been dozens of countywide advisory referendums on a wide variety of topics over the years, including marijuana legalization, the dark store loophole, corporate personhood and nonpartisan redistricting reform.

Additional sources: Ballot Initiative and Referendum in Wisconsin, myvote.wi.gov

Election day is April 4. Check out WUWM's voter guide to learn about the races on the ballot and how to vote.

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Maayan is a WUWM news reporter.
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