by Henry Redman, Wisconsin Examiner
May 24, 2024
A constitutional amendment passed by Wisconsin voters in April that limits who is allowed to work on tasks related to the administration of an election has drawn questions from across the state on how it should be interpreted.
In recent weeks, both liberal and conservative groups have weighed in on the state Department of Justice’s effort to provide clarity.
The amendment was one of two approved by voters in April. Both drew criticism from Democrats that they sprouted from Republican conspiracy theories involving false claims of voter fraud in the 2020 presidential election.
One amendment banned the use of outside money for funding election administration. The other amendment, which passed in this year’s spring election with 58% of the vote, states that “only election officials designated by law may perform tasks in the conduct of primaries, elections, and referendums.” Election officials across the state have been seeking clarity on how the restriction should be applied.
Earlier this month, the Wisconsin Elections Commission began debating the topic, with Republican commissioners questioning if it should be interpreted to mean that the third-party printing companies that election clerks often contract with to print ballots will no longer be able to do so.
In that meeting, the WEC decided to begin the process of creating an administrative rule to guide how the new amendment should be applied while also starting to write more informal guidance to help election clerks apply the new law this fall. Commissioners also said they were awaiting guidance from the DOJ as it works to write an attorney general’s opinion on the amendment.
At the end of April, the Dane County Corporation Counsel asked the DOJ for an opinion on the amendment’s interpretation, stating that municipal clerks need more information while they prepare for the presidential election in November.
“While the amendment … seems simple and straightforward on its face, it is not so in application,” the corporation counsel, Carlos Pabellón, writes. “Who is an ‘election official designated by law’ is not clearly defined in the Wisconsin Statutes. Likewise, what constitutes a ‘task’ in the conduct of primaries, elections and referendums is not defined.”
Pabellón writes that “election official” should be defined as “an individual who is charged with any duties relating to the conduct of an election” and that should include anyone the municipal clerk designates to assist in the election administration.
On the question of what tasks must be done by an election official, he writes that there are a number of examples in which people not employed by the municipal clerk perform crucial election work.
“There are many ‘tasks’ that are collaterally related to elections,” he writes. “Most counties contract with commercial printers to produce ballots. Municipal and county IT departments assist in maintaining the security of the software and hardware protecting the election technology such as the voter registration system and results tabulated by electronic voting equipment. The vendor of the election systems provides technical guidance regarding operation and maintenance. Municipal clerks often rely upon local law enforcement to transport sealed ballots and election materials to the county clerk and upon other municipal employees to temporarily assist with absentee ballot mailings or other election preparation activities.”
Pabellón wonders if under the amendment, all of those people must be formally appointed by the clerk and execute an oath of office. He quotes Sen. Eric Wimberger (R-Green Bay), one of the authors of the amendment, saying that it would be “unrealistic to interpret the provision as banning outside help for all election-related activities … there’s going to be a distinction between election preparation and the conducting of the election. And I would say that the conducting of the election happens when the polls open or handling ballots.”
The DOJ began the process of issuing an Attorney General opinion on the amendment, opening public comment on the question until May 13. Progressive advocacy groups called for an interpretation of the amendment that clarifies the questions surrounding the new law while not interfering with Wisconsinites’ right to vote. A conservative group responded by arguing current law already offers the necessary definitions.
A coalition of progressive groups, represented by the voting rights-based firm Law Forward, agreed with Pabellón.
“The ability of the people to do the ‘hard work of democracy’ depends in no small part on the ability of election officials, from the Wisconsin Elections Commission to the ‘small army of local election officials’ who are charged with carrying out much of the work of administering elections in our state,” the Law Forward letter states. “With vanishingly few exceptions, those officials perform their work diligently, assiduously, and in accordance with law. But they do not, and cannot, do it alone.”
“In order to administer elections in Wisconsin, clerks necessarily work with any number of technical experts, attorneys, and others who assist election officials in performing their duties,” the letter continues. “As Dane County’s request reveals, however, an expansive reading of [the amendment] — one that would have the effect of either (1) limiting the definition of who is an election official or (2) broadening the definition of what is an election ‘task’ beyond those duties specifically described in Chapters 5 through 12 of the statutes — would interfere with the ability of officials to administer free and fair elections, and thereby damage the rights of all voters to successfully participate in our democracy and the ‘collective interest in accurate, well-run elections.’”
In its own letter, the conservative Wisconsin Institute for Law & Liberty (WILL) argues that current election laws already give enough clarity and that Pabellón was wrong to ask for a formal AG opinion.
“The meanings of ‘election official’ and ‘task in the conduct of any primary, election, or referendum,’ are not complicated,” the WILL letter argues, adding that those definitions can be found elsewhere in state law.
The WILL letter also lays out the DOJ’s criteria for requesting an AG opinion and states that Pabellón has not fulfilled those criteria.
“With all due respect to Dane County Corporation Counsel, he seems to have ignored your Office’s published criteria and asked you to give legal advice to third parties (municipal clerks) in non-specific situations and without a sufficient factual or legal background for you to render a meaningful and lawful opinion,” WILL writes. “He is basically asking you to anticipate potential issues and questions and write a law review article.” GET THE MORNING HEADLINES DELIVERED TO YOUR INBOX
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