Proposed Changes in Election Law Illegal?

Wisconsin garnered national attention for holding an in-person election at the onset of the pandemic in the spring of 2020 when other states were delaying elections or moving them online. The job of an elections attorney became all-consuming.

More than a year and a divisive presidential election later, the Wisconsin Legislature is pushing through a host of bills that would affect future elections — and invite legal battles because of potential violations of state and federal law, as well as constitutional problems.

“I think it can feel a little bit like whack-a-mole for people who are litigating these issues,” says Mel Barnes, staff attorney with Law Forward, a progressive law firm spearheading legal fights often on the opposite side of the lawyers who have repeatedly taken the side of Republican legislators at the Wisconsin Institute for Law & Liberty (WILL). “It’s a huge volume and a lot of them are problematic. Wisconsin is very much a part of the national trends.”

In fact, part of why Law Forward was created was Wisconsin’s reputation as a ”real testing ground for very conservative, very anti-voter ideas,” says Barnes. “We’ve had so much of that jammed through in the past decade. Now everything is slightly different, because we have a governor who will veto some of these things. But there’s still a very well-established conservative infrastructure here. And that’s why we see so many of these bills.”

Wisconsin’s election bills mirror national trends placing new restrictions and criminal penalties on voting activities, but because the draconian voter suppression bills are almost certain to be stopped by a veto while Gov. Tony Evers is in office, Wisconsin has not received as much attention as states like Florida and Georgia, despite having nearly two dozen such bills.

“Wisconsin is obviously one of the most bitterly polarized states in the country,” says Jon Sherman, a voting rights lawyer for the Fair Elections Center based in Washington, D.C. “And as a result of that, its election laws are a mess — a mess in the sense that they have, for years, tried to make it harder to vote. And they’ve made it cumbersome to vote.”

Should Republicans win the governor’s race in 2022 and continue to control the Legislature, state government would return to full GOP control as it was under former Gov. Scott Walker, who signed one of the most cumbersome voter ID laws in the country, as well as implementing crackdowns on early voting and other restrictions that Sherman says amounted to “some of the most restrictive voting laws in the country. Anywhere.”

Policy based on an anomaly

The COVID-19 pandemic altered voting behaviors, primarily a much greater reliance on absentee ballots by voters who wanted to vote from home to avoid COVID-19 infection. Voters were also concerned about ballots reaching the clerk’s office in time because of frequent delays in mail delivery during the same period.

This led to an unprecedented increase in the use of absentee ballots, along with deposit boxes for returning ballots. Sherman guesses that 10 to 20 years down the road, we will see 2020 as an anomaly but says the pandemic underscored the need for absentee voting as an option.

“I don’t expect absentee balloting to be anywhere near what it was last year going forward,” he adds. “Wisconsin, typically had 4% – 8% of an electorate in any given year vote by mail. And last year it was upwards of 55% – 60% — an enormous increase in absentee voting.”

Yet the election bills moving through the Legislature make permanent changes. And Republicans have put more public time into these bills than most other issues this session, despite knowing they are almost certain to be vetoed. They have talked about using courts to make legal changes if their bills fail. And if the 2022 elections installed a Republican governor and kept the Republican-controlled Legislature, the bills could quickly become law.

Another unique circumstance in 2020 was that then-President Donald Trump cried fraud before voting even began and that charge was echoed by elected Republicans from the federal level down to local offices. The repeated assertions — even when disproven — coming from the nation’s top leaders caused the very phenomenon Republicans now use to justify new restrictions on voting: voters began to lack confidence in the integrity of elections.

As Sen. Duey Stroebel (R-Saukville) put it in a memo on his bill on indefinitely confined voters, Americans lack confidence “in the honesty of our elections. Faith in elections is the foundation of our legitimacy as a government and is a prerequisite for the peaceful transfer of power. Unfortunately, some of our election laws in Wisconsin are vague and a small fraction of election officials have exploited that vagueness to violate the clear intent of the law.”

Absentee crackdown

Sherman and Barnes analyzed the most contentious election bills moving through the Wisconsin Legislature for the Wisconsin Examiner and pointed out a number of potential legal violations. Both identified the impact on absentee voting among the most legally problematic areas because Republicans are seeking to restrict the use of absentee ballots in a variety of ways across a number of their proposed bills.

“I think the most concerning theme here is a lot of these bills really focus on absentee voting,” says Barnes. Restrictions on absentee voting would disproportionately harm a broad swath of voters that include the elderly and people with disabilities, who already face barriers to voting.

Proposed changes include removing a current exemption to the photo ID requirement for certain indefinitely confined voters, overseas voters and voters who received an absentee ballot from the clerk by mail for a previous election.

Another proposal would require a doctor’s note to prove a person is truly indefinitely confined and force people to reapply every two years. Barnes says after conservatives lost in court in Jefferson v. Dane County they now look to statutes to “drill down on the specificity of how someone has to be disabled.” Sherman points out the law allows people 65 and over to skip the doctor’s note, which he labels age discrimination.

Helping someone else cast a ballot would become more difficult under bills that limit who can give assistance. There are also bills that direct how a ballot can be returned on behalf of another person. One bill limits the people who can return someone else’s ballot to family members or a legal guardian. Sherman says a few of the provisions appear to violate the Voting Rights Act, which protects voters who require assistance due to blindness or other disability, or due to the inability to read or write, giving them the right to request assistance from anyone of their choice other than their employer or their union.

Another bill bars a person from helping more than one person return a ballot. Still another limits ballot drop boxes to the single location of a clerk’s office.

Portions of these bills tread on protections in the Americans with Disabilities Act, Help American Vote Act, Voting Accessibility for the Elderly and Handicapped Act, Voting Rights Act and the National Voter Registration Act (also called Motor Voter), say Sherman and Barnes.

The total impact of all of the absentee voting changes could also be challenged as potential violation of the U.S. Constitution because together the bills add up to an undue burden on the right to vote under the First Amendment, which protects voting as political expression, and the Fourteenth Amendment’s equal protection clause, says Sherman.

“If you’re attacking absentee voting from a million different angles, eventually you’re going to make it so burdensome and cumbersome to vote without any reason to do so,” says Sherman, “so at least a subgroup of voters will be able to sue and allege that you’ve constitutionally unduly burdened their right to vote.”

Barnes agrees the legal strategy would arise from how the bills are applied and the total overall consequences.  “If the changes end up making it practically impossible for people to vote, or impossible for the Election Commission to get ballots out in time, I think that’s where we would run into issues,” says Barnes.

Republicans who pushed through one of the toughest voter ID laws in the nation might also want to think twice before passing bills targeting absentee voters.

“That’s probably close to the top of my list as to what’s most problematic in these laws — they’re attacking the indefinitely confined status and that has been one of the bases for the courts to uphold the voter ID law,” says Sherman, who litigated the law in Wisconsin. “If they eliminate that then I think there’s a very strong argument that those voters’ rights will be unduly burdened by the voter ID requirements. And it will trigger a new round of litigation.”

Sherman finds the Republican attack on absentee voting nationwide puzzling, because while he suspects “some Wisconsin legislators might like turnout in Milwaukee to be less than it is,” he acknowledges that proving discriminatory intent is a difficult legal strategy.

“But a lot of these bills are targeting absentee voting and golly, I mean, maybe people just don’t know what the statistics are,” he adds. “African American voters tend to vote in person. Same with Latino voters, by and large. And the absentee voting portion of the electorate tended to be older, whiter and more conservative, historically. And that’s just documented.”

Further obstacles

Clerks currently can “cure ballots” when there is a minor technical defect, rather than returning it to the voter. For example a witness who lives with the voter forgets to put down his municipality, but his spouse at the same street address includes that detail, so the clerk fills it in. That practice would be banned.

Legal issues arise because the bill would require the clerks to return the ballot, the voter would have to correct it and, particularly if the voter cannot leave the house, it would then have to be mailed back. If there was not sufficient time for all of that to take place before the election, that vote would not get counted, disenfranchising the voter due to what Sherman calls an illusory cure.

“So where it is a purely technical defect that has no consequence whatsoever on the integrity of the election, we’d be very happy to file a lawsuit saying that this unduly disenfranchises voters for no gain whatsoever in election integrity,” says Sherman.

As with other measures where voters are not given notice and an opportunity to be heard in defense of their ballots, it could be viewed as a due process violation as well.

Still other measures amount to what Sherman calls a “technological literacy test” particularly for voters who do not have easy access to the internet, a computer, a scanner or copier. The lack of access could be due to the inability to leave the house, no access to transportation or a lack of skills necessary to perform certain tasks, such as scanning a photo ID to submit it with your ballot application.

Then there’s the bill that would place restrictions on what an employee can say and do at a private nursing or group home regarding elections, which Sherman calls the “nursing home gag rule.” The bill reads: “No employee of a qualified retirement home … may influence an occupant of the home or facility to apply for or not apply for an absentee ballot or cast or refrain from casting a ballot.”

Sherman views it as a First Amendment violation: “There’s no basis to just ban speech.” He notes it could be a crime to unduly influence someone’s choice on the ballot, but finds it “bizarre” that a worker  could not offer to help return, obtain or fill out an absentee ballot to facilitate civic engagement.

“They will argue that they’re being protective of nursing home residents, but these processes have gone on for years without any allegation of fraud or undue influence on those voters,” he adds. “These are the processes that enable them to vote. Why impact them? This is the way in which these people vote. Without these opportunities, they wouldn’t be able to cast the vote at all.”

Many of the GOP bills come with a penalty of up to six months in jail, $1,000 or both. Passing bills with such harsh penalties could create another wave of cases going to court as elections officials, volunteers and citizens fear inadvertently committing a felony.

It’s not just Wisconsin that is attaching stiff penalties, it’s a broad national trend as other states also create new categories of civil and criminal charges for election violations.

“The real danger,” says Barnes, “is not just that someone can be prosecuted for what is, in many cases, an administrative decision. If you have a local county clerk who is getting guidance to do one thing and feels like there’s a potential conflict and knows there are these criminal penalties attached — every incentive for that local clerk is now to run to court and let courts sift that out rather than opening themselves up to that liability.” That avalanche of litigation could also slow down voting and overwhelm the courts, “which can be really troubling.”

Red vs. blue

While day to day election administration and oversight primarily comes down to state law, according to Barnes, major protections against voter discrimination are in federal law, the U.S. Constitution and the Bill of Rights.

A measure passed by Democrats in Congress in early March has provisions that would affect elections across the board. HR1, also known as the “For the People Act of 2021” would expand voter registration with automatic and same-day registration, increase voting by mail and limit purging voter rolls. (Along with many other provisions that touch on a variety of areas including ethics, redistricting and cybersecurity of election systems.)

State Democrats have also proposed measures, including ranked choice voting (triggering an automatic runoff if no candidate gets 50% of the vote) which also has GOP sponsors. Wisconsin Democrats also want the state to enter into an agreement with other states to choose the winning presidential candidate based on the national popular vote. The difference is that Republicans, who call their bills to tighten election laws “election integrity bills”, control the Legislature and its committees, so the bills sponsored only by Democrats will almost assuredly never be taken up.

Wisconsin Republicans view HR1 as using the Federal Election Commission, under control of the White House, to federalize elections and allow Democrats to implement mandates that would benefit their side such as forcing states to adopt automatic voter registration and same-day voter registration, restoring voting rights to felons after they serve their sentences and gutting voter ID laws.

Political parties, not surprisingly, have markedly different messages on what impact their election bills would have.

“Republicans want to make it easy to vote and hard to cheat,” says Republican Party of Wisconsin Chairman Andrew Hitt. “Democrat proposals like H.R. 1 would hinder election integrity and implement unconstitutional standards like ballot harvesting that are ripe for fraud. All Americans want secure elections — and Republicans in Wisconsin and across the country are working hard to ensure that voters can have the confidence in their elections to which they are entitled.”

“Democrats think voters should pick their politicians,” counters Democratic Party of Wisconsin Chair Ben Wikler. “Republicans think politicians should get to pick their voters. If you believe in the right to vote, vote for a Democrat — and in particular, vote for Gov. Evers, who is our last line of defense against more Republican voter suppression that would have potentially devastating consequences for our state and our country.”

Broadly speaking, many of the Wisconsin bills go in precisely the opposite direction from the federal bill and “would certainly be in conflict with HR1 if that were to pass,” says Barnes. “So I think we could have a real federal preemption there for all these bills that make it more difficult to vote.”

Both sides are proposing bills now, well in advance of the next major election in the fall of 2022 when Wisconsinites will vote for governor and a U.S. senator.

Even among the election bills that groups including Common Cause, the Wisconsin Democracy Campaign, Disability Rights Wisconsin, League of Women Voters of Wisconsin and many other groups that have testified against, there are provisions that both parties, clerks and advocacy groups agree would be helpful.

“It’s not that people are necessarily partisan actors and Democrats are saying, ‘No, everything’s perfect. Don’t change anything,’ because they won the last election,” says Barnes. One proposal with bipartisan support would permit absentee ballots to be counted the Monday before an election or fed into machines by early in-person voters. Other bills bring needed clarity, such as spelling out how curbside voting can occur. “And that’s where people should be focusing their energy,” says Barnes.

Sherman, too, expresses some optimism: “I don’t like to fear monger on this, so I think it’s important to remember that voters have been rolling with the punches for two decades now, as the voting laws have become more draconian. And the turnout is going up.”

Reprinted with permission of Wisconsin Examiner.