Free Election Day Buses Still Illegal, Attorneys Say

New Gillig Clean-Diesel Bus. Photo Courtesy of MCTS.

No, the county’s attorneys have not changed their minds.

Milwaukee County’s Office of Corporation Counsel (OCC) still believes that providing free bus rides explicitly for encouraging voting would meet the standards of “inducement” prohibited by state statutes governing election bribery.

In 2022, Sup. Peter Burgelis authored a resolution providing free transit on election days to encourage voter turnout. Corporation Counsel Margaret Daun told the board then that such an action would likely be illegal under state law. Burgelis’ resolution did not survive a board vote, but during the 2023 budget process board members approved his amendment asking Daun’s office to “submit a legally permissible plan to provide free rides to all riders on all election days.”

During a meeting of the board’s Committee on Judiciary, Law Enforcement and General Services Monday, the office responded. “It’s the OCC’s opinion that any provision of free rides to the polls available to the general public, whether funded by public or private dollars, is likely illegal for two reasons,” Karen Tidwall, deputy corporation counsel for the county, told supervisors.

The first reason pertains to the legal definition of “a thing of value” which you are not allowed to provide to get someone to vote. The statute defines this as anything worth more than $1.00 and also includes “services” as something that can be considered a thing of value. The county has already placed a value on bus rides with its fare schedule, and even reduced fares exceed $1.

The second reason is that the budget amendment seeking the creation of this program explicitly states that free rides would be enacted to encourage voter participation. For this reason, “Milwaukee County could not reasonably dispute that the free rides are the sort of ‘inducement’ to go the polls prohibited by [the statute],” according to an OCC legal analysis provided in a memo to the board.

Other local governments have provided free transit on election day, including the City of Green Bay and Racine County. The OCC memo responded to this, stating, “Obviously, the absence of a lawsuit does not establish the legality of the Initiative.” The OCC based its opinion on the analysis of state statutes and review of relevant case law.

Tidwall also pointed to the OCC memo outlining potential criminal and civil liabilities. It notes that violation of the statute could lead to elected officials being removed from public office, and that it’s considered “a Class I felony, with maximum penalties of up to $10,000 and 3 years and 6 months in prison.” Additionally, there could be civil challenges, the memo warned, including “challenging the results of an election based, in part, on providing free transportation in violation of [the statute].”

Sup. Burgelis told the committee he disagreed with the corporation counsel’s opinion. He also said that he didn’t think the OCC’s report provided the “legally permissible” plan his amendment asked for.

The county’s attorneys did provide supervisors options for legal actions the board can take on the issue, just not a legal version of an action they have repeatedly stated is illegal.

Specifically, the office outlined four actions available to the board. The first is to offer fares at a reduced rate of $1.00, which OCC believes would be allowed by state statute. The second is to ask for an opinion from the state Attorney General’s office. A third is to use the county’s lobbyists to advocate for a change in state law. The fourth was to implement suggestions drafted by the Federal Transit Administration (FTA) for local governments seeking to boost turnout and subject to restrictions like Wisconsin’s.

These suggestions from the FTA included providing non-partisan election and voter registration materials; placing absentee ballot drop boxes at high-traffic stations and stops; implementing temporary service changes to make traveling to polling locations easier, like more frequent or extended service, or temporary special service to specific polling locations; wayfinding signage to nearby polling locations; and working with local officials to have polling locations placed along existing bus routes.

The OCC memo also offered that “[A] voter with proper standing could challenge the constitutionality of [the statute] on the grounds that it violates the Due Process Clause of the Fourth Amendment, the Equal Protection Clause, or the Voting Rights Act of 1965.”

Transit System Doesn’t Like the Idea

The Milwaukee County Transit System (MCTS) and the Milwaukee County Department of Transportation (MCDOT) also do not support the proposal. As MCDOT director Donna Brown-Martin said, their opposition goes beyond the fact that, per the county attorney’s legal opinion, the board would be asking transportation officials to do something illegal, carrying both civil and criminal penalties. They are also concerned about the financial repercussions.

First is the loss of fare revenue. The sponsor of the proposal, Sup. Burgelis, has in the past attached extra funding to the proposal, specifically an estimated $63,000 used to cover the lost farebox revenue. But the specific cost on any given election day varies, as not all elections see the same voter turnout.

But more than that, Brown-Martin is worried about the Republican-controlled state Legislature’s reaction. “I guess I’m opposed to anything that puts a target on our backs to have the Legislature look at us and identify us as going against their concerns and their interests at this time.”

In 2021, the Legislature cut more than $30 million in state transit aid to the county simply because MCTS received funding for transit from the federal government. The system is only two years away from a massive fiscal cliff that could lead to a roughly 50% cut to bus service, and for this reason, Brown-Martin said she is wary of doing anything that could jeopardize transit funding.

Brown-Martin said opposing anything that would encourage voting “goes against everything I believe in,” but added, “I just don’t have the ability to just snub my nose at them at this time,” she said. “They’ve already shown that they can be resilient in terms of taking our funds.”

Read the full OCC memo.