What are the 2022 Milwaukee County referendums and what do they mean?
There are two advisory referendums on the 2022 midterm ballot in Milwaukee County — one about semi-automatic firearms and another about marijuana.
The referendum questions are:
Should the Wisconsin Legislature prohibit the import, sale, manufacture, transfer, or possession of semi-automatic “military-style” firearms whose prohibition is allowed under the Wisconsin and United States Constitutions?
Not sure what a semi-automatic firearm is? The AR-15-style rifle is one example.
Answering yes = I think semi-automatic firearms should be prohibited in Wisconsin.
Answering no = I think these firearms should continue to be allowed in Wisconsin.
On November 8, 2022, voters passed the advisory firearms referendum — 69% voted yes, 31% no.
Do you favor allowing adults 21 years of age and older to engage in the personal use of marijuana, while also regulating commercial marijuana-related activities, and imposing a tax on the sale of marijuana?
Answering yes = I think marijuana should be legal for people 21 and older and be taxed.
Answering no = I think marijuana should be illegal.
On November 8, 2022, voters passed the advisory marijuana referendum — 74.3% voted yes, 25.7% no.
Now, let's take a step back to break down advisory referendums. Hint: They are just that ... advisory.
What is a referendum?
There are two types of ballot measures — initiatives and referendums.
The term referendum typically refers to any election in which the people vote to approve or reject a specific proposal. There are three main types of referendums — advisory, binding and petition.
By contrast, initiatives start from scratch. Paul Nolette, an associate professor of political science and department chair at Marquette University, explains, "Voters can propose an entirely new law independently from the elected officials."
He continues, "In practice, referendums tend to be more important than initiatives in Wisconsin because (1) there is no statewide initiative process allowed and (2) the initiative is quite limited as, among other things, it cannot conflict with an existing law. So, referenda tend to be the more prominent form of direct democracy in Wisconsin."
Then what's an advisory referendum?
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 Nolette.
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.
By contrast, in a binding referendum, "if enough people vote for them, they become law," Nolette says. For example, many school referendums are binding.
As for a petition referendum, it allows voters to approve or disapprove an action taken by their municipality. He explains, "The voters can then essentially say, 'We don’t like what our elected officials have done, so we want to veto it.'"
What happens after the advisory referendum votes are counted?
Nothing. These referendums are advisory only, with no requirement that it be acted upon if approved. The results of an advisory referendum are not binding, and governing bodies are not required to act in accordance with the majority opinion.
However, Nolette says, advisory referendums "can be a good way for people to express themselves on specific issues because when your voting for [a candidate], you may or may not agree with everything that, that candidate has to say. This is a little bit of a different opportunity to have a say on a specific policy."
Why is the firearms referendum worded the way it is?
We've had a few people reach out with questions about the way the Milwaukee County firearms referendum is worded: Should the Wisconsin Legislature prohibit the import, sale, manufacture, transfer, or possession of semi-automatic “military-style” firearms whose prohibition is allowed under the Wisconsin and United States Constitutions?
Nolette explains, "The wording is a little bit confusing, and in part because there's no specific definition of what a military-style weapon is. You know, you often hear that phrase of assault weapon, but those don't have a specific legal term. So I mean, given the beginning of this referendum and the debate over it and such, it's really focused on the sort of AR-15 type of weapons that we've seen used in many mass shootings, including just recently across the country. And so that’s what this is trying to get [at.]"
The referendum was written and debated by the Milwaukee County Board of Supervisors, he says, and during their debates, the potentially confusing wording did come up as a reason not have it on the ballot.
In regards to the second part of the firearms referendum question — whose prohibition is allowed under the Wisconsin and United States Constitutions, Nolette explains:
"There isn’t anything in the constitutional language itself that explains what prohibitions are allowed (or not allowed). As a general matter, this is because states have “police powers” (the right of states to regulate for the health, safety, and welfare of their citizens) that are broad and open-ended, as opposed to federal powers that are specifically enumerated. Thus, any limits on state police powers have to be specifically articulated in constitutional language or judicial interpretation. This basic principle derives from the Tenth Amendment."
And he continues, "In McDonald v. City of Chicago (2010), the U.S. Supreme Court decided that the Second Amendment of the Constitution was indeed a limit on state police powers. In other words, states could not use their broad power to regulate for health, safety, and welfare to prohibit an individual from owning a handgun altogether. However, in that case, the Court left open the door for states to regulate guns in other ways. For example, most states (and the feds) have specific categories of guns that are not for commercial use (such as fully automatic weapons used by the U.S. military). There are also other types of limits states have placed on guns – and it isn’t clear where the line between 'acceptable' and 'unconstitutional' limitations are, because the Constitution doesn’t say explicitly, and neither have the courts."
Wisconsin's midterm elections are Tuesday, November 8, 2022. If you have a question about voting or the races, submit it below.