Legal Concerns Raised Over Free Election-Day Transit

A proposal to offer free bus rides on election day narrowly passed a county committee Thursday after officials raised concerns about potential legal challenges and the county’s finances.

Sup. Peter Burgelis introduced legislation that would make all bus rides on election day, Nov. 8, free in order to encourage voter turnout in Milwaukee County.

The resolution is intended to reduce transportation as a barrier to exercising the right to vote. Burgelis noted in his resolution, and he reiterated to the Finance Committee, that Milwaukee County had a lower turnout of registered voters in 2020 compared to the Dane, Ozaukee and Washington counties.

At committee, Burgelis referenced a 2016 study by the Massachusetts Institute of Technology (MIT) that showed some respondents stating transportation was a major factor in their decision not to vote.

“This resolution is not a magic wand to fix that problem.” Burgelis said. “But it’s a step in the right direction, and addresses a barrier to voting.”

The board’s Finance Committee recommended the resolution for adoption Thursday on a four to three, with Supervisors Shawn Rolland, Steve Taylor and Liz Sumner voting against it. Officials from the Office of Corporation Counsel and the Milwaukee County Department of Transportation (MCDOT) expressed concerns about the proposal’s potential legal and financial risks, respectively.

Municipalities and counties in Wisconsin have offered free transit on election day in the past. In 2020, the City of Green Bay offered free bus rides for students at UW-Green Bay. That same year Racine County offered free bus rides over a period of five days to include election day, as reported by the Racine Journal-Times.

Sup. Steve Taylor was the first on the committee to question the legality of the county offering free bus rides to improve voter turnout. “This can’t be legal, right?” he said. “Is corporation counsel on here so we can talk about the legality of this?”

Corporation Counsel Margaret Daun responded, pointing to Wisconsin State Statute Chapter 12, which includes a section on election bribery. “And it reads that no person – a person here would include a municipal corporation such as the county – may offer or give anything of value to induce any elector to go to or refrain from going to the polls,” she said.

Taylor responded saying, “This is so illegal… talk radio is going to light up saying that the county board is offering bribes to get people to the polls.”

Though, Daun did not say the practice is per se illegal. “One, we didn’t opine definitively about how this statute would be interpreted… it has yet to be interpreted by a court,” she said.

Burgelis said that the language regarding “inducing” someone to vote or not to vote is unique to Wisconsin law, and said, “To my knowledge is has never been used to thwart Souls to the Polls from bringing people to the polls on election day… companies like Lyft or Uber that also offer discounts or free rides.”

Daun agreed with the uniqueness of the statute, but said “there is interpretive gray area here,” noting that courts may consider the legislative intent of the law, and that must be taken into consideration.

“I think everyone here understands that Milwaukee County gains sort of a special level of attention from various interest groups… attention and acuteness of these issues surrounding elections seems to, with each passing year, become more and more contentious, more and more acute, more and more deeply partisan, less and less, potentially, common sense,” Daun said.

Since the 2020 election, Republican activists, lawyers and elected officials have become increasingly litigious in efforts to ban previously uncontroversial election practices; an example being the bevy of lawsuits filed over absentee ballot practices.

Donna Brown-Martin, director of MCDOT, said that she could not offer support for the measure given the county’s fiscal precarity, specifically related to the transit system, which is facing a projected budget deficit of approximately $33 million by 2025. “The uncertainty of our fiscal situation does not lend itself to recommending, in good conscience, to draw funds from the contingency fund, especially for an action we did not plan for at this time,” she said. She said she would support pursuing a similar plan in 2024.

The board has regularly debated whether or not it should pull funds from the county’s contingency fund this legislative session. The Milwaukee County Office of the Comptroller has projected that the county will likely break even on its 2022 budget, but only if all the funds currently in the contingency account are used to balance the budget.

Update: This story has been updated to reflect that the vote tally at the Finance Committee was four to three in favor, not three to two.