Melanie Conklin

Do State Election Laws Need Reform?

After months of Trump’s false claims, legislators still squabbling, but a bipartisan bill is possible.

By , Wisconsin Examiner - Jan 26th, 2021 12:25 pm
Ballot processing at Milwaukee's central count facility. Photo by Jeramey Jannene.

Ballot processing at Milwaukee’s central count facility. Photo by Jeramey Jannene.

Former President Donald Trump has exited the White House. The violent mob he riled up that ransacked the Capitol was expelled. And rioters didn’t show up to ruin the inauguration of President Joe Biden.

But the words of presidents linger. And those words retain power.

“The president of the United States occupies a rhetorical position that no other elected leader does,” says Allison Prasch, an assistant professor in the UW-Madison’s department of communication arts. “And so when the president speaks, we listen.”

Prasch has dedicated her career to studying such words — her academic expertise is U.S. presidential rhetoric and political communication. She says that even with Trump’s departure, his words continue to have resonance and pose a threat.

One example is Trump’s false claims of election fraud that are being repeated as an excuse to push laws that are likely to make elections less fair. It’s happening in Wisconsin even as potential bipartisan measures for election reform, which get less attention but could become law in Wisconsin’s divided government, have not advanced.

“It’s not as if, when someone leaves office these things go away,” says Prasch. “And in fact they are being allowed to fester. … [And] there absolutely is a danger and it is an attack on our democracy.”

Doubling down on damage done

“Our fundamental trust in facts and truth has been undermined and Donald Trump has played a pivotal role in that,” says Prasch. She says that while Trump is the main spokesperson of misinformation about the election, other elected leaders in Congress have “enabled and encouraged this and they are just as much responsible for this as Trump himself.”

Wisconsin GOP legislators have also parroted Trump’s assertion that the election was rife with fraud, despite strong evidence to the contrary. Two days before the attack on the U.S. Capitol, a little-noticed resolution was adopted in the state Assembly on a voice vote by Republicans, who affirmed that one of their top goals for the new session was “addressing election law violations,” as the resolution was titled.

Here is how Assembly Majority Leader Jim Steineke (R-Kaukauna) described it: “The Assembly passed a resolution that calls for the strengthening and clarifying of our election laws, given the problems we saw in the general election and procedures that were questionable, if not unlawful.”

That resolution, authored by Rep. Scott Allen (R-Waukesha) and highlighted by Speaker Robin Vos in his opening speech. Then the next day, Jan. 5, Vos talked to reporters about Allen’s resolution: “You know we adopted that resolution yesterday, to make sure that people know we think this problem is serious. I discussed it in my speaker’s address. So I assume that we will take that as one of our top priorities and probably have legislation at least ready to go forward, sometime way before the end of the month.”

He told reporters he did not want to get into a discussion of whether or not the election is valid, then repeated a comment echoed by other Republican members: “We have to improve the process when literally hundreds of thousands of people in Wisconsin doubt that the election was held in a way that didn’t have substantial charges of fraud.”

After Republicans spread misinformation, they followed up with what Democrats labeled a “sham hearing” in mid December where invited guests offered testimony, some outlandish and much of it debunked, of supposed fraud in Wisconsin.

Now Republicans point to the very misinformation they circulated and repeated as proof that change is necessary.

“Constituents of the 97th Assembly District, and thousands of people from across America continue to contact me daily to express their deep concerns over how the 2020 elections were conducted,” claimed Allen in a statement.

Beloit Rep. Mark Spreitzer, the ranking Democrat on the Assembly campaign committee, was not surprised by the resolution.

“Our Republican colleagues are continuing to cast inappropriate doubt on the election results with the public and they’re catering to their base,” says Spreitzer. “It has the effect of undermining confidence in the democratic process, but I didn’t see anything new in that resolution that we haven’t heard from our Republican colleagues over the last few months.”

The one bill that has been introduced would select Electoral College electors by gerrymandered Congressional districts rather than the current statewide winner-takes-all method used by the vast majority of states. While other bills have not surfaced publicly, Spreitzer guesses Republicans will use rhetoric they ginned up as the excuse to pass anti-democratic voter suppression bills that will make it harder for Wisconsinites to vote, despite repeated proof that the 2020 elections were free and fair.

“I would make the case that one of the implications of Trump rhetoric on a national level is that it has emboldened state legislatures and state officials to continue to perpetuate the baseless claims that the president himself stoked even before the election,” says Prasch. “And so even after Trump leaves office, these things remain.”

Policy speed date

Initially Vos said his caucus’ high-priority election bills would be introduced “well before” the end of January and pushed immediately through committees to a quick floor vote.  However, such a strategy is futile as Democratic Gov. Tony Evers has said he is likely to veto bills that land on his desk without any bipartisan support.

And there is room for bipartisan election-improvement bills, says Barry Burden, director of the Elections Research Center at the UW-Madison.

“I think it’s completely worthwhile for the Legislature to take a serious look at election laws,” says Burden. “This is something every state ought to revisit. It’s like doing a checkup with your doctor.”

Burden sees 2020 elections — executed during a pandemic — as a new frontier. Voting by mail spiked and the state was not fully prepared for the dramatic change. But people who tried it for the first time, may want to vote by mail again. The laws will need to adjust, he says, to accommodate that trend.

“That would require a deliberate process, not pushing through a bill in a month,” says Burden. “It would require hearings where experts can testify about what’s worked in other states, or where local election officials — clerks of both parties — could come in and testify about what they think has worked and what changes need to be made.”

He says the one-sided December hearing was “not a path to sound policymaking” but rather “just hearing allegations for their own sake, which makes the public actually less trustful of elections, which gives policymakers on that side of the aisle more ammunition to go in and try to change things to make the process stricter.”

Both parties and the voters would benefit, Burden says, from evidence-based analysis, which takes time. That way the “rules of the game” could be backed by both sides, which could then turn to debating matters of policy.

Bipartisan potential

Burden, Spreitzer and a handful of Republican legislators all recommend an adjustment to ballot processing laws in Wisconsin, which forbid clerks from opening mail-in ballots or loading early ballots cast in-person in clerks’ offices into machines before the polls open.

Ballots cannot be reviewed or stacked in a pile in advance, under current law. Nor can ballots be fed into the machine so they are ready for tabulation on Election Day.

“Wisconsin is one of the few states that doesn’t let them touch those ballots as they pile up,” says Burden. “And then on election morning they have to begin processing and it’s just hugely burdensome and really difficult for them to get through all of that.”

Spreitzer saw hope last session with two bills — both bipartisan and both of which he backs — that would allow clerks to tackle some of this work in advance. Neither passed, but primarily because different Republican senators preferred one version over the other. The new Senate Majority Leader Devin LeMahieu authored a bill to begin processing early votes the Monday before the Tuesday election. Sen. Kathy Bernier, a former clerk who chairs the Senate elections committee, backed a bill to allow ballots cast by early voters that come into the clerks’ offices to be fed into voting machines right away. In both cases, on Election Day the machine tabulates results from pre-loaded ballots at the press of a button.

Spreitzer thinks the “whole food fight” could be put to rest by passing both bills and letting the local clerks decide whether to use one or both options.

An added bonus may be increased voter confidence.

“The reality is voters don’t like to go to bed on election night with one candidate leading and wake up the next morning with a different candidate leading,” says Spreitzer. “They think something fishy has happened. So it’s just not good for voter confidence in elections to have these very late night/early morning results coming in even though we know that they are from legally cast ballots that have, in some cases, been sitting in the clerk’s office for weeks.”

Another potentially bipartisan reform could be even further improvements in tracking ballots — along the lines of how big companies send updates on a merchandise order that is being shipped. Burden says Colorado voters have benefitted from being able to sign up for text messages that update voters as their ballot goes through each stage of the process.

It’s not expensive, doesn’t give an advantage to a political party and let’s both voters and election officials track ballots for added confidence.

“So, if you have concerns about ballots being stolen or manipulated or — as Trump has alleged that foreign countries are printing ballots and any of that kind of stuff — valid tracking just solves that problem,” says Burden.

Spreitzer says Democrats are also interested in automatic voter registration so records are updated when people change their addresses at the Department of Motor Vehicles (DMV). “It not only makes it easier for people to vote but also does increase election security by … keeping track of when people are moving and updating their addresses,” he argues.

Spreitzer and some of his Democratic colleagues also want to explore universal vote by mail, done in a way that preserves the opportunity to vote in person for those who prefer it — however that is something Republicans have typically opposed.

Whether any of these measures can move forward depends on both parties following Burden’s advice about that annual doctor’s check-up on elections, and making it a bill (or bills) that is narrowly focused on technical improvements.

“There are matters of policy where we’re going to have fierce disagreements,” says Spreitzer. “So any bill that ends up with poison pills and becomes partisan will ultimately meet its fate at the hands of Gov. Evers veto pen.”

Restoring voter confidence

Professors Prasch and Burden both see a path towards de-escalating partisan fights and mistrust in the 2020 elections, but it involves politicians responsible for misleading rhetoric to publicly declare that the elections were overwhelmingly free and fair.

“In response to the speaker [Vos] saying there are hundreds of thousands of people that don’t believe this election was fair, well then it’s your job to come clean that you played a role in that and to restore integrity to the democratic process,” says Prasch, “because if it’s true that if you say something long enough people will believe it, it’s also true that you can go back and say, ‘I was wrong.’”

The message has to come from Republicans who are close to Trump’s base such as U.S. Sen. Ron Johnson, adds Burden. “I think until that happens there’s going to continue to be distrust among a large number of Republicans in the electorate.”

A separate step to healing, says Prasch, is on the voters. “We as the electorate, have a duty, and a responsibility to elect people who are willing to say hard things to us.” That may be President Joe Biden’s toughest job, which she says it is up there with what President Abraham Lincoln faced in trying to unite the country, “But the difference is that this division has been sowed by the president of the United States.”

Reprinted with permission of Wisconsin Examiner.

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