Early voting is underway for the spring election in Wisconsin.
Locally, ballots will include races like school board, county board, and circuit court judges.
The statewide ballot has voters weighing in on their preference for presidential candidates.
It also has two questions asking voters if they want to amend the state constitution.
The first question relates to the use of private funds in election administration.
Shall a section of the constitution be created to provide that private donations and grants
may not be applied for, accepted, expended, or used in connection with the conduct of any primary election or referendum?
The second question relates to election officials.
Shall a section of the constitution be created to provide that only election officials designated by law
may perform tasks in the conduct of primaries, elections, and referendums?
Both questions began as GOP legislation, but were vetoed by the governor.
Republicans then passed them as statewide ballot referenda, asking voters to decide directly.
To help us understand these questions, we turn to UW Law School Professor Robert Yablon.
Thanks very much for being here.
Good to be with you.
So the first question harkens back to the use of so-called zucker books,
funding from the owner of Facebook that went to more than 200 cities and counties in Wisconsin,
to run elections during the pandemic, a yes vote would prohibit that.
Was that private funding found to be illegal or politically biased?
So the short answer is no.
There were some legal challenges raised back in 2022, that funding, and they were rejected
by both the Wisconsin Elections Commission and by courts.
It was found that those funds did not violate state law.
There were allegations made of partisan bias with respect to how those funds were distributed,
and the bulk of those funds did go to the state's largest cities, which are democratic strongholds.
People who defend those funds will respond and say, well, it's natural that those would be
the places that got the most funding.
They have the most people and they had the greatest need in 2020, and over 200 municipalities
throughout the state did get some of that money.
There have been no studies that have indicated that any of these funds
tilted the results of the election in Wisconsin.
Are Wisconsin elections underfunded to the extent that private funding is needed?
Well, chronic underfunding of elections has been an issue throughout the country.
There are election officials, both Republican and Democrat, around the country who have been
asking for more funds for things like new equipment, more security measures, and so on.
So that's a constant issue.
2020 was particularly distinctive because of the pandemic.
And election officials in Wisconsin and elsewhere really found themselves with unique
demands that they faced, and they were often short on the funds and personnel that they
needed to fulfill their responsibilities.
And that's where you had the private interventions in 2020.
That's not something that we've had a lot of in the past, but private organizations saw
that there really was this shortfall, and folks stepped up.
So question number two on the ballot is asking whether to prohibit anyone other
than an election official designated by law from election administration.
And this has to do.
It's my understanding with a consultant in Green Bay who advised officials on how to
make their election run more smoothly, again, in 2020 during the pandemic.
Apart from outside consultants, what kind of election officials not designated by law,
however, help run elections?
Yeah, I mean, that's a great question.
And there is some ambiguity about the scope of this provision and exactly what it would
prohibit. There's some question about whether it would even prohibit what some of the proponents
seem to want to stop, which is the use of the sort of election consultants that generated
controversy in Green Bay in 2020.
But there are often people that are not election officials that do work that is in
some way connected to helping facilitate an election.
There are folks who are not election officials who will help the poll workers
set up the polling place in the morning.
And questions may arise about whether they can do that.
Sometimes a machine might break down, and questions might now arise if this
passes about whether the election official can call that outside vendor and ask for
troubleshooting assistance.
Could they call upon an expert in ballot design to make sure that they're
fitting everything on the page in a sensible way?
So those are the worries that opponents of this will bring up, that it creates uncertainty
possibly unintended consequences.
And if it is interpreted broadly, could make the job of election officials more difficult.
Meanwhile, would amendment number two change existing law?
That's also a question.
So Wisconsin has a statute right now that says only election officials may conduct an election.
And in 2020, that provision was interpreted actually not to prevent the use of expert outside
consultants. So it may be that the amendment does very little, right?
A narrow interpretation of the amendment would say that it's just tracking the law that we have.
But because of the fact that you have arguably ambiguous terms here, what is a task?
What is conduct of an election?
That opens the door at least to some arguments that it needs to have a broader interpretation.
What do legal experts think of seeking to enact constitutional amendments
as opposed to passing legislative bills into statute?
Right. Well, so there are a lot of states since 2020 that have restricted private election funding.
It's been a bit of a political issue throughout the country.
For the most part, that has happened through statutes, not through constitutional change.
And so some of the critics of this amendment say this just doesn't rise to the level of a matter
that needs to, that you need a constitutional amendment for.
The Constitution is the state's fundamental law.
It sets the framework for our government.
It protects our fundamental rights.
Is this really the sort of thing that we need to enshrine into the Constitution
rather than try to work out through the political process,
ideally through something like a bipartisan compromise?
Robert, you have one.
Thanks very much.
Good to be with you.
And you're probably just as happy I didn't because I said,
does it constitute a power grab from the executive branch, right?
I guess I'm glad you didn't ask that one.
Because that's what the executive branch is saying.
But it strikes me just as a citizen.
I don't know.
I'm not a constitutional expert.
But is there ever any sense of muddying up the Constitution?
That is an issue with state constitutions generally because they are easier to amend
than the US Constitution.
Wisconsin is not the worst offender.
You know, we have had 125 or so amendments over our history,
which is about the national average.
There are some states that have hundreds and hundreds of amendments.
Alabama has 17 amendments about bingo.
That's funny.
I should have asked that.
It does make their state Constitution hard to read.
And so you do worry because there has been an uptick in this kind of activity
because of the divided government that we have
that you are arguably starting to clutter up the Constitution more than you ought to.
Yeah.
Okay.
Good.
Well, maybe we'll do some more reporting on that.
I like, what did you say, Alabama?
Yeah.
All right.
Yeah, they're maybe the very worst.
Then they have seven or 800 constitutional amendments.
Oh my gosh.
Huh.
Interesting.
All right.
Well, thank you.
Yeah.
It's nice to see you.
Yeah, good to see you.
Have a good weekend.
Yeah, you too.
Thanks.