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Gov. Tony Evers found himself in familiar territory last week, issuing his first 10 vetoes of the legislative session.

Only this time, instead of putting the legislation to bed, as a veto has done for decades in Wisconsin, the governor’s pen triggered a “veto watch” among Democratic lawmakers.

“Our caucus has determined protecting Gov. Evers’ veto to be a top priority,” Assembly Minority Leader Greta Neubauer, D-Racine, told Wisconsin Watch, adding that Democratic lawmakers are “remaining extremely vigilant and will do so throughout the session to ensure that we are able to uphold (the governor’s) vetoes and prevent Wisconsin from moving backwards.”

But why do Democrats need to be on alert when Republicans control fewer than 66 seats in the Assembly — the two-thirds supermajority needed to override a veto?

The answer: The Wisconsin Constitution says that to successfully override a veto, lawmakers only need support from two-thirds of members who are present on a given day — not two-thirds of all Assembly members. So if just three Democratic lawmakers were absent on a given day, Assembly Republicans could have a two-thirds majority and would be able to undo Evers’ vetoes.

It’s been a record 38 years since the Legislature has overridden a veto, a failure that “in recent decades has made the governor’s veto power practically invincible,” according to a January 2023 memo on the veto override process from the nonpartisan Legislative Reference Bureau.

How do vetoes work in Wisconsin?

When lawmakers send a bill to the governor for a final signature, the governor has six days, excluding Sunday, to veto it or it becomes law. Once the governor vetoes a bill, it first returns to the chamber where it originated. In the Assembly, Republicans control 64 of 99 seats. In the state Senate, they control 22 of 33 seats. The Assembly can vote on a veto override for the same bill multiple times during a session, whereas the Senate may only vote for one on the same bill once, according to the LRB.

Evers has vetoed bills passed by the GOP-controlled Legislature at a record-breaking clip in recent years. During the 2021-22 legislative session, he struck down 126 bills sent to his desk, or 32% of all bills sent to his desk, the most by any governor in a single session in Wisconsin history. Other governors have vetoed on average 3.7% of bills they receive, the LRB reported.

Four of the bills Evers vetoed last week would have made changes to Wisconsin’s unemployment insurance system. Another would have prevented state agencies and local governments from restricting the sale of gas-powered vehicles.

But with such slim margins this session, the governor’s veto doesn’t feel invincible to Democrats, and lawmakers are planning accordingly in an attempt to avoid being caught off guard by a surprise vote scheduled by their Republican colleagues. To prepare for a potential surprise override vote, Assembly Democrats are slated to receive a briefing from the LRB on the veto override process this fall, Neubauer spokesperson Sidney Litke told Wisconsin Watch.

When could a veto override take place? 

Veto votes may take place at any time during a regularly scheduled floor session. Those periods include Sept. 12-15, Sept. 18-21, Oct. 10-13, Oct. 16-19, Nov. 7-10, Nov. 13-16 and in 2024 on Jan. 16-19, Jan. 22-25, Feb. 13-16, Feb. 19-22, March 12-14 and April 11, 16-18. 

Next year on May 14 and 15 any vetoes that have not been overridden are automatically placed on the calendar for what is known as a “veto review floorperiod.”

“All of our members have made this commitment to be in Madison for every scheduled session day,” Neubauer said.

And now that there are vetoes available to be scheduled for an override vote, the Democratic leader said all 35 of her caucus members will also be in Madison on all skeletal session days — procedural sessions usually involving only a few members that are required to maintain established floor schedules on session days when the full body doesn’t actually meet.

Evers is also conscious that his veto authority is protected by the slimmest of margins.

“After the last election I met with all the legislators on the Democratic side and said, ‘You can’t be sick this year.’ And so far that’s worked out,” the governor told Wisconsin Watch earlier this summer in Oshkosh. He added, “We are well prepared to ensure that we keep the margins where they should be. Obviously, the Republicans have a large number of people in the Legislature, but the Democrats will always be there.”

Both Evers and Neubauer said they have not discussed with Republicans an informal deal to avoid a surprise override vote.

Assembly Speaker Robin Vos, R-Rochester, through a spokesperson, didn’t respond to a question about whether he would schedule an override vote if Democratic lawmakers were absent and Republicans had a two-thirds majority on a given day. Senate Majority Leader Devin LeMahieu, R-Oostburg, through a spokesperson, didn’t respond to a question about whether he would support an override effort that had been approved by Assembly Republicans using procedural tactics.

Why would a veto override matter? 

Neubauer cautioned that a snap override attempt could harm the Legislature as an institution.

“People … have an understanding of the ways in which the rules have been changed in the Legislature — through the gerrymander and otherwise — to further consolidate Republicans’ power,” she said. “And I don’t think that an unscheduled veto override attempt would reflect well on our democracy and on the institution.”

She continued, “That being said, we just have to be as prepared as possible.”

Senate Minority Leader Melissa Agard, D-Madison, echoed Neubauer, likening a surprise override vote to other recent Republican “over stretches,” including lame duck legislation in 2018 that sought to weaken Evers and Attorney General Josh Kaul, Republicans’ decision to gerrymander the state’s voting maps to insulate their majorities and the attempt to submit fake presidential electors to Congress after the 2020 election.

“These types of parlor tricks are not true governing,” Agard told Wisconsin Watch. “They aren’t in the best interest of our state.”

Could courts play a role? 

A Republican veto override would leave little recourse for Democrats.

Even with liberals taking control of the Wisconsin Supreme Court last week, Democrats could face a tough path to reversing any potential surprise overrides via the courts.

Aside from what’s in the constitution, the Legislature sets the rules for override process. There are no statutes governing the process and the Legislature can change or enforce the rules however it wants, according to the LRB memo.

The state Supreme Court stated in 1983 that “if the Legislature fails to follow self-adopted procedural rules in enacting legislation, and such rules are not mandated by the constitution, courts will not intervene to declare the legislation invalid.”

The LRB concluded in its memo that the courts have no role in overseeing the veto override process.

“The veto override process is an internal, procedural matter created and governed by the Legislature alone. The Legislature adopts rules that regulate the process, and courts may not adjudicate the application or interpretation of the rules,” LRB director Rick Champagne wrote. “The veto override process is in every way a self-determined legislative process.”

Neubauer said Democrats are prepared to prevent it from getting that far.

“Our caucus is very clear that this is one of our top priorities for this session,” she said. “We’ve discussed it countless times and we are in very close communication with every member of the caucus and will be throughout the session to make sure that we’re doing what we need to do. And people will make real sacrifices — time with their family, vacation, time in their districts — in order to make sure that we are doing everything in our power to protect the veto.”

Wisconsin Watch reporter Jacob Resneck contributed to this report.

The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Wisconsin Democrats on ‘veto watch’ after Tony Evers blocks 10 bills is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletter to get our investigative stories and Friday news roundup.

When Jamie Gaffke gave birth to her first son in 2014, she and her spouse spent about $3,000 on a lawyer to ensure among other things that both of their names appeared on the birth certificate.

One reason the expense was necessary at the time: On birth certificates, according to Wisconsin statutes, the parents in artificial insemination cases are defined as the mother and the “husband of the mother” when the individual is conceived or born.

Gaffke, 43, and her wife Ruth Vater, 39, recalled in an interview with Wisconsin Watch feeling terrified during the hearing at the Rock County Courthouse where they went to file a petition to ensure Vater’s same-sex parental rights. At one point, the judge appointed a guardian ad litem, “a person whose responsibility would be to represent the interests of our child, as if we did not,” Vater said.

The case came shortly after the federal courts struck down Wisconsin’s 2006 constitutional amendment banning same-sex marriage. But even in 2018 — three years after the U.S. Supreme Court had legalized same-sex marriage nationwide in the landmark decision Obergefell v. Hodges — Gaffke and Vater had to return to court to secure Vater’s parental rights for their second son.

For many same-sex couples in Wisconsin, the Obergefell decision being commemorated now during Pride Month was only one step in an incomplete legal journey.

State law still includes more than 100 references to “husband” and nearly as many references to “wife,” a Wisconsin Watch review found.

Those sections of the law include documents and laws related to not just birth, marriage and divorce, but also taxes, fishing licenses and veterans home accommodations. Even the definition of “parent” is outdated, including either a biological parent, a parent by adoption or a “husband who has consented to the artificial insemination of his wife.” The state’s unconstitutional amendment banning same-sex marriage and the “Family Code” in state statute, which refers specifically to “husband and wife,” remain on the books.

Court decisions and administrative actions under Democratic Gov. Tony Evers have blocked the practical effects of those terms — for now. But the 2022 revival of Wisconsin’s 1849 abortion ban after the U.S. Supreme Court overturned federally guaranteed abortion rights reminds many in the LGBTQ+ community that some rights, once granted, can still be taken away.

“It’s really frustrating because most folks across the state of Wisconsin support the rights of our family, but the law doesn’t,” said Vater, whose family now lives in Madison. “Most people assume that the status for families like ours is much safer and better than the one we actually live with. The reality of our situation is much more tenuous than most people realize.”

Bipartisan legislation stalls

Wisconsin is among a small number of states that include discriminatory language against same-sex couples in how they define “parent,” according to a Wisconsin Watch review of all 50 state laws. Only two states — Wisconsin and South Dakota — include a reference to “husband” in the primary definition of “parent.”

At least 21 states have adopted neutral language through a law known as the Uniform Parentage Act, according to a recent report from the Movement Advancement Project, a research group that promotes equity and inclusiveness. Wisconsin is among 29 states that have not.

Maine, for example, in 2016 changed its definition of parent to include a person if “the person and the woman giving birth to the child are married to each other and the child is born during the marriage.”

In Wisconsin, a once bipartisan effort to update state law to include gender neutral terminology for spouses and parents has stalled in the Republican-controlled Legislature.

Sen. Mark Spreitzer, D-Beloit, and several colleagues introduced bills to update the language in each of the past four sessions. The 2019 bill had two Republican co-sponsors, Reps. Todd Novak, R-Dodgeville, and Joel Kitchens, R-Sturgeon Bay.

Spreitzer said when he has talked to Republican colleagues about the bill, which he expects to introduce again later this session, the term “let sleeping dogs lie” comes up.

“ ‘You’ve got your win at the U.S. Supreme Court, why do you want me to take a vote on something I’m going to take heat from my base for?’ ” Spreitzer said, characterizing the responses. 

Novak, the state’s only openly gay elected Republican lawmaker, said everybody acknowledges that same-sex marriage is the law “so there’s really no interest in doing a bill just for statute cleanup.”

“Most legislators don’t even realize the statutes say this,” said Novak, who declined to sponsor last session’s bill after clashing with the Legislature’s LGBTQ+ caucus over his support of an unsuccessful measure to ban transgender women from women’s sports.

Evers has proposed revising state statutes to incorporate gender-neutral terms in each of his last two budget requests, but the Republican-controlled Joint Finance Committee removed the language as part of a broad motion removing non-fiscal policy measures.

Senate Majority Leader Devin LeMahieu, R-Oostburg, and Assembly Speaker Robin Vos, R-Rochester, did not respond to requests for comment.

Public opinion, court majorities shift on same-sex marriage

Voters amended the Wisconsin Constitution in November 2006 by a 59%-41% margin to state: “Only a marriage between one man and one woman shall be valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state.”

The Obergefell decision nullified that language, but it will remain in the state constitution unless the Legislature in two consecutive sessions votes to remove it, and voters approve the change. Should a future U.S. Supreme Court overturn Obergefell, some warn Wisconsin’s constitutional ban on same-sex marriage could again take effect.

In a concurring opinion last year to Dobbs v. Jackson Women’s Health Organization, which overturned the half-century constitutional right to an abortion before viability, conservative Justice Clarence Thomas said the court “should reconsider all of this Court’s substantive due process precedents” — including the 5-4 same-sex marriage ruling. The court now has a 6-3 conservative majority. 

In December, Congressional Democrats and President Joe Biden repealed the federal 1996 Defense of Marriage Act, even though Obergefell had already nullified it. A key provision of DOMA, which prevented states from having to recognize same-sex marriages performed in other states, was previously struck down in the 2013 U.S. Supreme Court decision U.S. v. Windsor.

Megin McDonell, executive director of FAIR Wisconsin, an LGBTQ+ advocacy organization, said there’s “definitely value” in updating the statutes.

“We want to make it permanent in the statutes, or as permanent as the statutes can be,” she said.

“This is the law of the land in all 50 states,” McDonell added. “We should update our state statutes just to reflect that. … Cleaning up the statutes and fixing the language would provide more clarity, more recognition for people.”

Asked for a response to advocates trying to neutralize gender-specific language in state law, Julaine Appling, president of Wisconsin Family Action, the lead organization opposing same-sex marriage, chuckled and said, “I guess that ship has sailed.”

She later backtracked on using that phrase adding, “I will fight every single day to retain the terms husband and wife, mother and father, male and female, all those terms” in state law. Appling explained that retaining the terms is important in case Democrats take control of Wisconsin’s GOP-run Legislature.

“The minute we don’t have a more conservative majority in the state Legislature,” she said, “is the minute everything like that changes.”

There’s no doubt public opinion has shifted sharply on same-sex marriage in the past generation. In 1996, when Congress passed DOMA, just 27% of respondents nationwide told Gallup they approved of same-sex marriage. In 2022, that number was 71%.

Husband and wife in Wisconsin law

In June 2021, Evers issued an executive order directing “each cabinet agency to use gender-neutral language whenever practicable in external documents, including but not limited to: using gender-neutral terms and pronouns, drafting to eliminate the need for pronouns, omitting superfluous gendered words, and making any reference to gendered family relations, to the extent allowable by state and federal law.”

That order covered administrative rules, guidance documents, manuals, websites and all similar documents. But it could not re-write statutes. That’s the Legislature’s job.

Wisconsin state statutes remain riddled with language that excludes same-sex married couples. For example, the definition of “parent” that refers specifically to “husband” appears in multiple sections of law, such as for bone marrow transplants, juvenile justice and access to children’s medical records.

Other examples where “husband” and “wife” still appear in state law include: 

• The crime of theft doesn’t apply if the perpetrator and the victim are “husband and wife.”
• For bank accounts, marital accounts are defined as those who “claim to be husband and wife.”
• State law nearly covers same-sex couples in a section on veterans homes, acknowledging that the second priority for housing goes to spouses of those who qualify for a veterans home. But it later notes the department may deviate from that order “to prevent the separation of husband and wife.”
• Divorce proceedings allow couples to attempt reconciliation during which time they may attempt to live together as “husband and wife.”
• Statutes refer to a “combined husband and wife resident fishing license.”
• A homestead tax exemption applies to land owned “by husband and wife jointly.” 
• Even wild rice harvesting license rules say immediate family members, including “husband and wife,” may share licenses. 

Same-sex couples take cases to court

Evers’ order came after years in which same-sex couples had to return to court to ensure equal treatment under the law, even after it was legalized nationally.

“There was just a time when the language didn’t match the reality on the ground,” said Juscha Robinson, an attorney who has worked on real estate and estate planning cases for same-sex couples. “You would have couples flipping coins over who was going to be husband and who was going to be wife.”

Even though the 2015 high court ruling required that same-sex couples be granted immediately all of the same rights as heterosexual couples, Wisconsin and several other states continued to resist.

The Department of Health Services under Republican Gov. Scott Walker failed to update birth certificate forms to accommodate same-sex couples, despite employees expressing confusion internally about how to address the issue. 

In 2016, a federal judge in Madison granted a married female couple and other similarly situated couples the right to a birth certificate listing both spouses, suggesting that DHS update its forms. A 2017 U.S. Supreme Court decision affirmed the right to have both spouses listed on birth certificates nationwide.

Around that time, other official forms in Wisconsin began to change. The Wisconsin Court Records Management Committee began updating divorce and child custody forms to include gender-neutral language in 2017, according to archived meeting minutes. Previously divorce forms specifically referred to husband and wife, but now refer to petitioner A and B.

Judges and court officials from around the state heard no objections as they oversaw updates to the forms, according to Court Information Officer Tom Sheehan.

Milwaukee County Circuit Judge Kevin Martens, chair of the forms subcommittee, said court decisions — not political considerations — drove the changes in the forms. Should a future U.S. Supreme Court decision overturn the right to same-sex marriage, the current wording on the forms should suffice, he said.

“Even if that were the case, it wouldn’t change identifying the parties as ‘petitioner,’ ” Martens said. “You wouldn’t go back to a caption that said ‘husband and wife.’ You wouldn’t need to.”

Fight for equal rights continues

When Laura Megna, 37, of Madison, had her first child in 2018, the birth certificate form she and her wife filled out at the hospital still asked for the name of the “mother” and “father.” They crossed out those words and wrote in “parent” and “parent.”

The hospital mailed in the form and the state sent back a proof of the final birth certificate asking for any corrections. It still said “mother” and “father,” so they corrected it again. The final birth certificate came back with the correct titles.

Megna, who is the family liaison care coordinator at UnityPoint Health-Meriter, said the process was similar in 2020 when she had their second child, but there was greater awareness in the health care world that the change was possible. Last year, when their third child was born — after Evers’ executive order — the form had a “parent” and “parent” option.

Although that issue has been resolved for now, Megna said she would still like to see the language in the law changed because “we’re significantly more evolved than when many of these things were written.”

LGBTQ+ legal advocacy groups recommend all same-sex parents not rely on birth certificates, but also have courts legally recognize their parental rights, said Emily Dudak Leiter, an attorney at the Law Center for Children and Families in Madison.

“It still comes down to the culture in our country,” Dudak Leiter said. “That’s why all of this is more societal, not legal. It’s until you don’t have to worry about that unfairness, that’s when I won’t want a court order for every single one of my clients.”

The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Wisconsin law still refers to husband and wife, a reminder to LGBTQ+ families that their rights are at risk is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletter to get our investigative stories and Friday news roundup.

Democrats celebrated Tuesday’s election of Milwaukee County Circuit Court Judge Janet Protasiewicz to the Wisconsin Supreme Court, cementing a 4-3 liberal court majority. But another election result fanned speculation that Republicans could topple that new majority by impeaching Protasiewicz.

Rep. Dan Knodl, R-Germantown, won the 8th Senate District special election, giving Republicans a two-thirds majority in the state Senate. That is the threshold for the Senate to remove office holders. An Assembly majority, which Republicans hold, can impeach. 

But a legislative effort to oust a justice would steer Wisconsin politics into nearly uncharted waters. Lawmakers have impeached just one judge in state history — in 1853 (and the Senate didn’t convict) — and legal experts call a modern-day removal under the current set of facts unlikely, citing finer details of the process. 

Speculation about Republican-led impeachments of Democratic Gov. Tony Evers or other statewide officeholders has run rampant, especially after Knodl said he would be open to removing Milwaukee judicial officials from office, including Milwaukee County District Attorney John Chisholm and possibly Protasiewicz as a circuit court judge. Knodl said he wouldn’t favor removing Evers, because he’s been able to work with him. Knodl hasn’t specified whether he would consider removing Protasiewicz in her Supreme Court capacity. 

“If there are some that are out there that are corrupt, that are failing at their tasks, then we have the opportunity to hold them accountable,” Knodl told WISN-TV’s UpFront last month.

But impeachment isn’t supposed to be exercised for political differences or poor performance.

“The Assembly may impeach an elected official by a majority vote based on specific reasons: corrupt conduct in office or for the commission of a crime or misdemeanor,” according to a Wisconsin Legislative Council memo.

Senate Majority Leader Devin LeMahieu, R-Oostburg, acknowledged that threshold in an interview with WISN-TV on Wednesday saying, “we’re not going to use impeachments to overturn elections or anything like that.”

“To impeach someone they would need to do something very serious, so no, we are not looking to start the impeachment process as a regular occurring event in Wisconsin,” he said.

Other method has lower removal standard, but higher vote threshold

There is another method for removing judges and justices specifically under the state constitution, known as “address,” which does not require a trial before the Legislature.

A 1971 state law specifies that reasons for removing judges and justices through the address process must relate to “misconduct” or because they are “not physically or mentally qualified to exercise the judicial functions of the office.”

State law defines misconduct as “willful violation of a rule of the code of judicial ethics; willful or persistent failure to perform official duties; habitual intemperance, due to consumption of intoxicating beverages or use of dangerous drugs, which interferes with the proper performance of judicial duties; or conviction of a felony.”

If Republicans want to remove Protasiewicz, they might wait to see if she rules on cases in which she had shown some kind of bias — a potential violation of judicial ethics rules — said Daniel Suhr, a Cedarburg lawyer who previously served in Republican Gov. Scott Walker’s administration.

“Rather than saying her entire campaign approach was flawed to the point of impeachable, I think an alternative approach is to say, on this particular case, this particular topic, you cannot be impartial, or you certainly cannot appear impartial, which is the standard that the law sets,” Suhr said.

While Assembly Republicans hold the simple majority needed to impeach civil officers for corruption or crimes, they lack the two-thirds majority required for removal under the address process, which covers misconduct issues such as judicial ethics.

The fact that the address process has a lower standard for removal, but a higher vote threshold than impeachment is significant, said Chad Oldfather, a Marquette University Law School professor.

“It’s absurd to suggest that Protasiewicz has engaged in ‘corrupt conduct in office’ when she hasn’t even taken office yet,” Oldfather said. “ ‘Corrupt conduct,’ especially in the era when the Wisconsin Constitution was adopted, was mostly understood to be about people using public office for personal gain — not policy or legal disagreements, but self-dealing. That’s consistent with the longstanding American norm that judges are not to be impeached simply because the authority with impeachment power doesn’t like the judges’ decisions.”

What if there were a dispute over the Legislature’s handling of an impeachment? Then the Wisconsin Supreme Court would decide, as it has in other states, said Miriam Seifter, a University of Wisconsin-Madison Law School professor.

“An impeachment that immediately follows a free and fair election is not a sign of a healthy democracy,” Seifter said. “Absent allegations of corruption or crime, impeaching a judge who just won a resounding electoral victory would show a troubling disregard for the will of the voters.”

Trial of Levi Hubbell

Only one judge in Wisconsin history has faced an impeachment trial: Levi Hubbell, according to a Wisconsin Court System biography.

Hubbell’s story and 1853 trial provides background on the impeachment process and foreshadows today’s debate surrounding the role of partisanship in Wisconsin’s judicial elections.

Four years after arriving in Milwaukee from New York, Hubbell — an opportunistic politician who drew the suspicions of Milwaukee’s political establishment by successfully courting German Catholic and the Irish votes — was elected circuit court judge in 1848, the same year Wisconsin became a state, according to a 1998 Marquette Law Review essay by historian Ellen Langill.

Commentators at the time decried how the state’s first supposedly nonpartisan race had become “clandestinely partisan,” Langill wrote.

Hubbell served on the first Wisconsin Supreme Court as part of his circuit court duties. He became chief justice in 1851 before the separately constituted Supreme Court was established in 1853.

That same year he was accused of a variety of charges, including handing out arbitrary sentences, misusing funds, accepting bribes and hearing cases in circuit court for which he had a financial interest. Some discussion unfolded about removing Hubbell through the address process, which would not require a trial, but Hubbell asked for a Senate trial.

The Assembly impeached him, but the Senate ultimately acquitted him.

“The vote to acquit Hubbell sent shock waves across the Second Circuit,” Langill wrote. “Many of his partisans and Democrats rejoiced at the news, while many judges and attorneys reacted with dismay and disbelief.”

The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Republicans can’t simply remove a Wisconsin Supreme Court justice is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our our newsletter to get our investigative stories and Friday news roundup.

The Wisconsin Supreme Court is more divided than ever.

Last year, the court issued more decisions with a “fractured opinion” than in any of the past 25 years, according to a review of Marquette University Law School research.

“Back in the 1950s (and even earlier), the Justices regularly issued unanimous or near-unanimous decisions in almost all of their cases,” attorneys Jeffrey Mandell and Daniel Schneider wrote in a draft article they shared with Wisconsin Watch. “Today, that happens less than half of the time.”

Fractured opinions occur when the majority agrees on the outcome of a case, but can’t articulate a unified basis for reaching its conclusion. That results in multiple, often lengthy, concurrent opinions and dissents that draw different configurations of support from the seven justices. Such decisions often leave the state without clear guidance on what the law is. 

Nine of the court’s 52 decisions in 2022 were fractured — more than twice as many as a decade ago and far more than 20 years ago when the court issued 89 rulings in one year without a single fracture, according to Mandell and Schneider, who reviewed research by Marquette University history Professor Alan Ball. Mandell is board president of Law Forward and Schneider works for Legal Action Chicago, both liberal legal advocacy groups.

“It’s not an overstatement that the Wisconsin Supreme Court has been dysfunctional for quite some time now,” Marquette University Law School Professor Chad Oldfather said at a recent Scholars Strategy Network of Wisconsin panel discussion about the Supreme Court election.

“There’s interpersonal conflict that goes back to the 1990s. The partisanship has given it a different dimension, but the conflict isn’t new. This is all situated within this larger framework of partisan discord that characterizes state politics here.”

The recent trend of more fractured opinion cases is worth noting ahead of the upcoming Wisconsin Supreme Court contest. Such cases spotlight which matters the court could more easily revisit if liberal Milwaukee County Judge Janet Protasiewicz defeats conservative former Supreme Court Justice Dan Kelly for the 10-year seat being vacated by retiring conservative Justice Patience Roggensack.

The April 4 election has mostly been framed as a referendum on major political issues including the state’s 1849 abortion ban and the Republican-gerrymandered legislative districts.

But the possibility that the ideological composition of the majority could shift 15 years of conservative control to four liberal justices has implications for other cases that could come before the court — ranging from ballot drop boxes and public sector union rights to the results of the 2024 presidential election.

‘Everything … may be revisited’

Liberals wrote several majority opinions from 2004 to 2008 after Democratic Gov. Jim Doyle appointed Louis Butler Jr. to replace conservative Justice Diane Sykes, who left after being appointed to the U.S. Court of Appeals. During that time, liberals controlled three seats and were often joined by a swing justice in decisions that conservatives decried as “liberal activism.”

But in 2008, Butler lost the election to Michael Gableman, ushering in an era in which conservatives mostly dominated the court. Since then, there have been more than 100 decisions in which the court’s liberals have dissented.

They include rulings that upheld restrictions on public sector collective bargaining, allowed guns on public buses, upheld a $750,000 cap on medical malpractice damages and strengthened legislative control over the executive branch, among others.

Protasiewicz has made no secret of the likelihood that her election would result in many decisions from the conservative era being revisited. The court has not ruled on abortion, but the recent U.S. Supreme Court decision overturning Roe v. Wade and a pending lawsuit challenging the state’s 1849 abortion ban means it will be one of the biggest issues before the court in the next term.

“Everything from gerrymandering to (ballot) drop boxes to Act 10 may be revisited to women’s right to choose,” she told Wisconsin Radio Network. “No matter where you fall politically, you want someone who is going to look at those cases and render decisions that are fair and impartial.”

Kelly has sounded the alarm that the power of the Legislature — which Republicans control with gerrymandered maps that the conservative Supreme Court has sustained — hangs in the balance.

“If there is an activist majority, (voters) will lose their ability to have their public policy set by their legislators,” Kelly told Wisconsin Radio Network. “They’re afraid that there will be four lawyers sitting in a Madison courtroom dictating policy decisions to the entire state.”

A return to ‘regular order’

Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty, said a liberal majority could mean a return to the kinds of decisions from the 2004-05 term when Butler was on the court.

Conservatives decried several of those decisions as “judicial activism,” including one that allowed manufacturers to be held liable in lead paint poisoning cases, another that struck down the state’s cap on medical malpractice damages and one in which the court struck down a conviction based on social science evidence that victim identification of a suspect at a crime scene was unreliable.

“It is a principle of the progressive left legal tradition that language is indeterminate … and this tends to increase the discretion the justices have,” Esenberg said. “Virtually any case could be on the radar screen.”

Sachin Chheda, a Democratic political strategist and adviser to Protasiewicz’s campaign, acknowledged that a Protasiewicz win could lead to the court tossing out the 1849 abortion ban and the current legislative maps.

But he disputed that there would be a wholesale attempt to toss out precedent and rewrite existing laws, such as the controversial 2011 Act 10, which hobbled public sector labor unions.

“The first thing we’ll see (if Protasiewicz wins) is some form of return to regular order,” Chheda said at the Scholars Strategy Network panel. “I don’t think anyone expects that the court is going to immediately take up 15 cases.” 

When Protasiewicz applied to Republican Gov. Scott Walker to be a Milwaukee County Circuit Court judge in 2012 she listed one of the 2005 cases, State v. Dubose — which wrote new rules for suspect identification — as one of the worst in the past 30 years because it “hampered law enforcement … resulting in denial of justice to the victim.”

Former state Supreme Court Justice Janine Geske, a citizen member of the Wisconsin State Journal editorial board that endorsed Protasiewicz, said a return to “regular order” would mean justices respecting precedent and not giving deference to the political implications of cases.

Geske described herself as a judicial conservative during her time on the court, but noted that definition has historically been distinct from a political conservative. She said judicial conservatives tend to rule on cases as narrowly as possible.

“You shouldn’t be making big policy decisions in a case that doesn’t call for it,” she said.

Fractured decisions could be revisited

Some of the major Wisconsin Supreme Court decisions in recent years affecting how state government works have come through fractured opinions, Mandell said in an interview. That’s significant because it creates a greater possibility that the issue will be litigated again if the court flips to liberal control.

For example, in Bartlett v. Evers, a challenge to Gov. Tony Evers’ partial veto power in the 2019-21 budget, the court found three of the vetoes were unconstitutional and one was constitutional, but noted “no rationale has the support of a majority.”

“The Bartlett case doesn’t tell us in any meaningful sense when a line-item veto by the governor or partial line-item veto by the governor is constitutional and when it’s not,” Mandell said. “The result of that is not just that the issue remains ripe for litigation again, but the result is also that now that it’s budget season neither the governor nor the Legislature has any idea how to handle the budget in a way that doesn’t raise this issue again.”

There’s already precedent for a fractured case being overturned by a change in court personnel.

In 2016, the court in the 4-3 fractured decision Coyne v. Walker upheld the Department of Public Instruction’s ability to set administrative rules without legislative oversight. But only the two liberal justices in the majority affirmed a precedent-setting decision 20 years earlier that DPI’s authority is established in the state constitution.

After Kelly was appointed to replace retiring Justice David Prosser, who had been in the Coyne majority, another case was brought challenging DPI’s authority, Koschkee v. Taylor, and the court ruled 4-3 with Kelly in the majority to reverse Coyne.

In a 2018 unanimous, but fractured, decision, Tetra Tech EC, Inc. v. Wisconsin Department of Revenue, Kelly wrote a 7-0 decision that agreed with the state that companies cleaning up contamination in the Fox River had to pay a sales tax. But only one other justice agreed with Kelly that the decision was based on the constitutional separation of powers.

Mandell and Schneider said the way the decision mixed 50 paragraphs with majority support among 58 paragraphs lacking majority support “has created confusion for lower courts and others trying to decipher the law.”

Among last year’s record number of fractured cases was Friends of Frame Park v. City of Waukesha. In a 4-3 decision, the court’s conservative majority led by Justice Brian Hagedorn determined that a group could not claim attorney’s fees in a public records lawsuit primarily because the city of Waukesha was correct in withholding the record until it was eventually released.

However, the three conservative members, without Hagedorn, additionally ruled that the law doesn’t allow for attorney’s fees if the government releases the records before a court order.

Public records advocates argued the decision will make it easier for governments to withhold records, and district judges have already denied fee recovery requests using the logic of the three-judge concurrence. But because the decision was fractured, a future court might reverse.

Mandell and Schneider conclude that the increasing inability of the court to clarify the law “is not only disappointing but also damaging to (the court) as an institution and to Wisconsin law.”

Editor’s note: This story was updated to include more information about Mandell’s and Schneider’s backgrounds.

The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Wisconsin Supreme Court’s ‘fractured opinions’ leave state without clear guidance is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our our newsletter to get our investigative stories and Friday news roundup.

One Supreme Court candidate calls his opponent a “liberal activist.” The other calls her opponent a “right-wing extremist.”

The mud-slinging heading into the April 4 Wisconsin Supreme Court election between former Justice Dan Kelly and Milwaukee County Circuit Court Judge Janet Protasiewicz is emblematic of the court’s bitter political divide over the past 20 years.

Since a similarly cantankerous Supreme Court election in 2008, conservatives have dominated the court. Prior to that, liberals issued several decisions that irked the state’s business interests, precipitating huge outside spending on what had previously been sleepy Supreme Court elections.

“What has become increasingly troubling is that over the past 15-plus years you started to get very conscious tribal definition by the justices,” said Ed Fallone, who has run twice for Wisconsin Supreme Court unsuccessfully as a judicial moderate. “When it’s open warfare on ideological lines and the tribal definitions get involved, that’s when national money starts flooding in because the tribe is national.”

To understand the origin of the political division on the court, it’s helpful to re-examine some of the cases each side views as judicial overreach.

Conservatives decry “liberal activism”

When conservatives talk about “liberal activism” they refer to several cases from the 2004-05 court term, which former Justice Diane Sykes referred to as “a watershed.” After Sykes was appointed to the 7th U.S. Circuit Court of Appeals, Democratic Gov. Jim Doyle appointed Louis Butler Jr., a former public defender and Milwaukee municipal judge.

Here are five of the cases conservatives pointed to:

Thomas v. Mallett 

In a 4-2 decision, the court ruled manufacturers could be held liable for injuries sustained by a child who had eaten lead paint chips in a Milwaukee house, even though the plaintiff couldn’t establish which company produced the lead or the paint.

Sykes called it “the most consequential common law decision” of the 2004-05 term and represented “a major reordering” of the tort system. Republicans undid the Thomas decision in 2011 through a sweeping tort reform bill.

Ferdon v. Wis. Patients Comp. Fund

The case involved a newborn injured due to negligence. The child would require care for the rest of his life. The jury awarded $700,000 in damages for the injury and $403,000 for future medical expenses, which exceeded the state’s $350,000 cap on noneconomic damages approved by the Legislature.

The liberal majority in a 4-3 decision struck down the cap as a violation of the Wisconsin Constitution’s equal protection clause.

“After Ferdon, it is hard to imagine the statute that could not be a target for a successful equal protection challenge,” wrote Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty.

Wischer v. Mitsubishi (Miller Park personal injury case)

In 1999, a crane collapsed in high winds at Miller Park, killing three workers. A jury awarded their widows $94 million in punitive damages, but an appellate court overturned the ruling, finding state law limited such damages to cases in which the defendant acted maliciously.

In a 5-1 decision, the high court reversed the appellate decision, applying a lower standard that the defendant disregarded the plaintiff’s rights. The parties later settled for $30 million.

After his election defeat in 2008, Butler said spending in the race by Wisconsin Manufacturers and Commerce, the state’s largest business lobby, sent a chilling message to judges to “not vote against business interests.” He referred to Thomas, Ferdon and Miller Park as decisions that caused WMC to deduce “that since my arrival on the court, our court’s decisions sometimes favored the consumer, and that was unacceptable.”

In a 2008 interview with Wisconsin Law Review, Jim Pugh of WMC called the cases “massive power grabs by the court,” and added, “there was a very robust debate about these cases, and his activist approach was repudiated by the voters.”

State v. Knapp

In a case involving a murder suspect, Matthew Knapp, police found the victim’s blood on Knapp’s sweatshirt in his apartment after he had invited in police, who did not issue a Miranda warning. The court in 2003 cited federal constitutional law in ruling that the sweatshirt evidence should be suppressed, finding that law enforcement violated the Knapp’s 5th Amendment protection against self-incrimination. But the U.S. Supreme Court later rejected that argument in a separate case. And after reviewing the Wisconsin case, it instructed the Wisconsin Supreme Court to reconsider its opinion under the state Constitution. 

In this second review, the state Supreme Court again ruled in Knapp’s favor. 

Conservatives said the expansion of a defendant’s state constitutional rights conflicted with a historical alignment of state and federal constitutional rights.

In his concurrence, Justice N. Patrick Crooks said the decision “serves to reaffirm Wisconsin’s position in the ‘new federalism’ movement,” which was a response among some in the legal community to an increasingly conservative U.S. Supreme Court.

State v. Dubose

In another case that Sykes considered part of the same “new federalism” movement, the court ruled 4-3 in a case involving a police procedure known as a “showup,” in which a suspect is presented to a victim, often at the crime scene. The court found that procedure unconstitutional, partly because of studies showing the unreliability of eyewitness testimony. Conservatives decried the decision for overturning U.S. Supreme Court precedent based on “social science.”

Notably, when Protasiewicz sought Republican Gov. Scott Walker’s appointment to be a Milwaukee County Circuit Court Judge in 2012, she mentioned the Dubose case as the worst Wisconsin Supreme Court decision in the previous 30 years.

Liberals point to string of conservative decisions

In 2008, Butler lost to Michael Gableman, and in 2010, Republicans swept into statewide office. The Legislature’s new GOP majority passed Act 10 under Walker, which reined in the power of public sector unions and helped re-elect Justice David Prosser in 2011 against a liberal challenger. When Crooks died in 2015, Rebecca Bradley was appointed to the court, solidifying a 5-2 conservative majority.         

Mike Browne, deputy director of the liberal advocacy group A Better Wisconsin Together, pointed to several high-profile, controversial cases that reinforced Republican control. It’s unclear if the cases would be revisited should Protasiewicz win, giving liberals a majority.

“The larger point is that court majority matters, and the conservative court majority worked its will in ways that have significantly impacted the state,” Browne said.

Here are five of the cases Browne highlighted:

Madison Teachers Inc. v. Walker

Teacher unions in Madison and Milwaukee filed suit in August 2011 over Act 10, which among other things, barred most public employees from collective bargaining on issues other than “base wages.” Writing the majority opinion in the 5-2 ruling, conservative Justice Michael Gableman upheld Act 10 in its entirety, reversing a Dane County Circuit Court ruling.

Ascaris Mayo v. Wisconsin Injured Patients and Families Compensation Fund

Ascaris Mayo went to a Milwaukee emergency room in 2011 with abdominal pain and a high fever. A physician and physician’s assistant told her to see her gynecologist. The next day, she went to another emergency room and was diagnosed with sepsis from an untreated infection. Mayo subsequently suffered organ failure, and all four of her limbs had to be amputated. A jury awarded $16.5 million in noneconomic damages. But the 5-2 decision reduced the award to $750,000, citing the state’s malpractice cap, which the Legislature reinstated in 2006.

The decision effectively reversed the court’s 2005 decision in the Ferdon medical malpractice case.

“The Mayos certainly are very sympathetic plaintiffs because of the severe injuries that Ascaris Mayo has suffered,” Roggensack wrote for the majority. “However, were we to construe the cap based on our emotional response to her injury, we would be substituting our policy choice for that of the Legislature.”

Wisconsin Carry v. City of Madison

In 2005, Madison adopted a rule that prohibited passengers on its public bus service from bringing onboard “any items of a dangerous nature,” which included “pistols, rifles, knives or swords.”

Wisconsin Carry later asked the city to bring the rule in line with the 2011 law that allowed concealed carry in Wisconsin. The city refused, and Wisconsin Carry sued but lost at the circuit court and appellate level. The 5-2 opinion in 2017 tossed the city’s rule, saying it could not be enforced in light of the 2011 law.

League of Women Voters of Wisconsin v. Tony Evers

The League of Women Voters sued after the Legislature convened an extraordinary session in 2018 just before Walker left office. Republicans passed a number of bills to limit the powers of incoming Gov. Tony Evers and Attorney General Josh Kaul, both Democrats, including action on the state’s Voter ID law. The 4-3 opinion found the Legislature’s actions, which also included 82 appointments, was legal.

Tavern League of Wisconsin, Inc. v. Andrea Palm

The third of three Supreme Court decisions that struck down Evers’ pandemic-related restrictions. The 4-3 ruling found the restrictions needed to be passed as emergency rules, which require legislative approval. The specific order at issue limited bars and restaurants to 25% of their typical capacity. The Tavern League of Wisconsin argued the orders would cause “economic ruin” for bars and restaurants.
The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Conservatives, liberals weigh in on Wisconsin Supreme Court ‘activism’ is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletter to get our investigative stories and Friday news roundup.

Listen to Statehouse Bureau Chief Matthew DeFour discuss this story with Civic Media’s Todd Allbaugh.

In 2015, Mark Wake was in a serious motorcycle crash that put him in the hospital for 10 months with a severe brain injury.

“I lost half my head,” he told Wisconsin Watch.

He also lost his voting rights when a Dane County judge placed him under a temporary guardianship.

The county’s register in probate sent that information to the Wisconsin Elections Commission, which added Wake’s name and Madison address to a list that contains more than 22,000 who have been “adjudicated incompetent” to vote in Wisconsin. The system is designed to protect mentally incapacitated people from having someone else fill out their ballot.

After Wake recovered, he said the guardianship was lifted, although no court records show his voting rights were restored — an additional step he apparently didn’t take at the time.

But in 2018, despite still being on the statewide ineligible voter list, Wake registered and voted in Poynette, a small Columbia County village where his name was not on the local ineligible voters list. In the 2020 presidential election, he voted again, this time in Madison as a previously registered voter.

Wake is one of 95 people in Dane County who altogether cast more than 300 ballots in past elections despite being on the state’s list of people deemed incompetent to vote, according to a county clerk’s office review of more than 1,000 records from the state’s list. The state elections agency is reviewing all 22,733 entries to ensure the list is accurate, spokesperson Joel DeSpain said.

“The ongoing review of this important topic involves multiple agencies and entities, each with different pieces at play,” DeSpain said. “Our goal is to be able to provide clean and complete statewide data.”

The number of confirmed cases of people voting after losing their voting rights is far more than previously known — and could mean there are hundreds more around the state. But the number is small compared with the millions of votes cast in statewide elections — and not enough to alter past results as former President Donald Trump and others have claimed.

The cases, however, point to a larger issue that election officials say requires a legislative fix: Unlike many other states, Wisconsin does not have a statutorily defined system for tracking people whom a judge rules are mentally incompetent to vote. In Wisconsin, some, but not all, counties notify state elections officials when a person is found incompetent to vote, DeSpain said.

“The system for identifying those voters and getting them out of the voter rolls is not working,” said Dane County Clerk Scott McDonell, whose office conducted the review of that county’s ineligible voter list at Wisconsin Watch’s request. McDonell said he has informed local election clerks of any discrepancies.

That creates a new wrinkle for some voters like Wake, who may be turned away the next time they go to the polls unless they go to court to ensure their voting rights are restored — and that information is updated on the state list.

Wisconsin Watch did not review every case, but a few that it did review pointed to human error, rather than coordinated or intentional illegal voting.

Ineligible voters under scrutiny

The issue first gained attention a year ago as part of former Supreme Court Justice Michael Gableman’s partisan investigation into the 2020 election. Gableman identified a couple of cases of people in nursing homes who had voted despite a court removing their voting rights.

His report didn’t include any names, but one was the case of Sandra Klitzke, an Outagamie County nursing home resident whose family questioned why she was able to vote in the November 2020 and April 2021 election after a court removed that right in February 2020. Klitzke’s family filed a complaint against the Wisconsin Elections Commission. 

The commission dismissed the complaint, noting the court official had no legal obligation to notify election officials of Klitzke’s status.

A Wisconsin Watch review, first reported in October, found Klitzke voted absentee with nursing home staff acting as a witness, primarily because the local town clerk had not deactivated Klitzke’s voting registration and state law allows absentee ballots to be sent automatically to indefinitely confined registered voters. Klitzke’s voter registration was deactivated in April 2022.

During the COVID-19 pandemic, the Wisconsin Elections Commission waived a rule requiring special voting deputies to visit nursing homes, which meant nursing home staff were tasked with helping residents fill out ballots. Disability Rights Wisconsin had warned nursing homes that their Medicare and Medicaid funding depended on ensuring their residents could vote. However, because Klitzke’s voter registration had not been updated, staff wouldn’t have known she wasn’t supposed to vote.

The Gableman investigation, which so far has cost taxpayers $2.5 million, was disbanded in August by Republican Assembly Speaker Robin Vos after being criticized for shoddy work and misunderstanding of state election law. But Gableman’s report did show the potential impact of an inaccurate voter list, especially for “indefinitely confined voters” whose absentee ballots are automatically sent to them.

Review finds more cases of ineligible voters voting

Wisconsin Watch also reported in October that Dane County had reviewed a random sample of 20 entries from the WEC list and found two examples in which someone was either still registered or had cast a ballot. McDonell said at the time that the finding had prompted a full review of about 1,000 records.

That review found 95 individuals who had voted, many in multiple elections, after being adjudicated incompetent to vote, plus another 23 who were still listed as a registered voter but hadn’t voted. The vast majority, however, never registered to vote, are listed as inactive because they are deceased, or a local clerk correctly deactivated their registration.

WEC officials declined to comment on how many cases they are finding statewide before their review is complete.

The voters identified from just Dane County cast more than 300 votes since 2008 — more than the 192 prosecuted election fraud cases over the past decade in the entire state. However, the numbers don’t tell the whole story.

The Dane County review found examples of data errors, such as a voter listed in the state adjudicated incompetent list with the same birthdate and adjudication date, almost certainly because of a manual input error. In another case, a voter had the same name, birthdate and address in both the adjudicated incompetent list and the WisVote voter registration database, but a different middle initial.

In 59 of the 95 cases, the voter had a different voter registration address than the address listed in the state’s adjudicated incompetent list. Those address changes could explain why many people on the state’s list were able to vote. In Wake’s case, Poynette Clerk Natalie Megow said his name was not on the ineligible voter list at local polling places because it only contained people from the statewide list with a Poynette address. Also, under state law, the local ineligible voter list only includes those still serving a felony sentence.

“If he walked in the door and proved his residency, we would have no reason to turn him down,” Megow told Wisconsin Watch.

Human error at play in many cases

Dane County Clerk of Courts Carlo Esqueda checked the list at Wisconsin Watch’s request and found one example of a person who had voting rights restored in 2012, but the statewide list wasn’t updated to reflect that.

In another case, Frank Wallitsch, a New Glarus man with developmental disabilities, was placed under guardianship in 2010 when he turned 18. He had his voting rights removed, and his name was placed on the statewide ineligible voter list. Since then, he has voted in at least 16 elections.

His mother Susan Wallitsch, a disability rights advocate from Mount Horeb, told Wisconsin Watch that she erred in 2010 when the lawyer representing her son in court filled out the guardianship paperwork. She did not intend to have the court remove her son’s voting rights, and didn’t notice that the box for removing his voting rights was checked.

But when she took her son to register to vote, no one notified her his name was on the statewide list. Frank Wallitsch doesn’t speak and requires intensive physical assistance, but he is able to point to letters and spell, his mother told Wisconsin Watch.

“He’s very aware of political situations and very interested in voting,” she said. “We’ve never been told he’s technically not allowed to vote, and we completely missed it in the paperwork at the time that it was done.”

No automatic checks for voters found ‘incompetent’

The potential for human error is compounded by a system that is only loosely organized to catch such problems.

Wisconsin is one of 34 states that allow courts to remove a person’s voting rights for mental health reasons, according to the National Conference of State Legislatures. But unlike the majority of those states, Wisconsin does not specify how courts should transfer that information to election clerks.

Instead, the Wisconsin Court System devised a system in 2008 for county registers in probate to submit forms to the state elections agency notifying it of people adjudicated incompetent to vote. Many counties still submit those forms by mail, others submit them by email and some don’t submit them at all, preferring to directly communicate the information to a local clerk, Wisconsin Watch found.

WEC staff input that information into a database, but the agency doesn’t have authority to deactivate those voters’ registration status — only local clerks can do that.

If someone’s name, address or birthdate is different between the list and voter registration form, a clerk might not assume it’s the same person. And if someone moves after being adjudicated, that information may not be updated on the statewide list.

Wisconsin’s election database has a system for automatically checking if someone who registers is deceased, a duplicate or someone still serving a felony conviction. But it does not automatically check for people on the adjudicated incompetent list, McDonell noted.

Election officials want legislative fix

Rep. Scott Krug, R-Nekoosa, chair of the Assembly Committee on Campaigns and Elections, said improving the system for tracking those adjudicated incompetent was one of the top issues raised by the Wisconsin County Clerks Association in a recent meeting. He said he expects to work with WEC, county clerks, Democratic lawmakers and the governor’s office to find a bipartisan solution.

“It just needs to be more standardized across the board,” Krug said. “The goal is not just to throw everything at the wall that we did last session, but to have more deliberative conversations with people ahead of time so they know what to expect.”

One complicating factor is the court records of people under guardianship are confidential under state law.

The Wisconsin Voter Alliance, a conservative advocacy group whose director Ron Heuer was one of Gableman’s investigators, has brought lawsuits in 13 counties to obtain the records of people under guardianship to check them against the statewide voter registration list.

Circuit courts have rejected those arguments, but the cases are being heard by the 2nd and 4th District courts of appeals and could make their way to the Wisconsin Supreme Court.

Barbara Beckert, director of external outreach for Disability Rights Wisconsin, said there has been a lot of focus on the “relatively small number of people” found incompetent by a court who are voting, which does need to be addressed. But, among other voting obstacles, her organization remains concerned about challenges some face in restoring their voting rights, registering to vote in nursing homes and ensuring the privacy of those under guardianship is protected.

Meanwhile, the WEC continues the arduous process of going through boxes of paper files to ensure court data are correct and election clerks are notified of any incorrect voter registration information. But fixing the system really needs to happen at the Capitol, DeSpain said.

“Ultimately,” he said, “the path forward to improving this process primarily lies with the Legislature.”

Editor’s note: This story was updated to mention that under state law local ineligible voter lists only include those still serving a felony sentence. It also corrects that Wisconsin requires courts to submit information about those who are adjudicated incompetent to local election officials, but does not specify how.

The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Dane County election review finds dozens of ineligible voters who cast ballots is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Republican lawmakers have authorized an audit of the state Department of Safety and Professional Services after years of rejecting Democratic Gov. Tony Evers’ requests to add staff — a standoff that has led to long waits for licenses, a huge surplus of agency funds and frustrated applicants flooding legislative offices with pleas for help.

Sara Wuorinen, 32, is one of those applicants. She first contacted DSPS in September 2021 to get licensed to be a substance abuse counselor and a mental health counselor in training in northern Wisconsin, which is struggling with a rise in suicides and drug overdoses.

More than 16 months later, Wuorinen still doesn’t have the necessary license.

Wuorinen spent hours on hold with the department, faxed and mailed in application materials multiple times and logged conversations with 13 different department officials. She is licensed as an alcohol and drug counselor in Minnesota and has a 2020 master’s degree in rehabilitation and addiction counseling from St. Cloud State University. But Wuorinen found out months into the process she had to take additional classes at the University of Wisconsin-Superior to qualify for her state license.

She said she moved to rural Wisconsin to qualify for up to $100,000 in student loan forgiveness, but the three-year commitment doesn’t start until she gets her Wisconsin license. Wuorinen took a lower-paying job at the clinic that hired her, but went from living comfortably in Minnesota to visiting food pantries to make ends meet in Wisconsin. The experience has taken a toll on her mental and financial well-being.

“This experience has been so negative and so discouraging, it’s really defeating,” she told Wisconsin Watch. “I don’t think they realize that these are people’s lives — people’s livelihoods.”

After Wuorinen testified in November before a special committee the Legislature created to study occupational licensing, DSPS legislative liaison Mike Tierney reviewed her case. He found several reasons for Wuorinen’s ordeal: the application was submitted under an old computer system currently being replaced and a 2017 Republican law that increased standards for licensing substance abuse counselors.

In a memo to the study committee, Tierney wrote that it comes down to better staffing at the agency. “This includes having adequate call center staff to not only answer incoming calls, but to ensure that information provided to callers is accurate,” he wrote.

License fees pay for DSPS budget

Pressure on DSPS has mounted as Republicans have refused to fully authorize the department’s requests for more staff over the past four years — even though the agency’s $62.5 million budget comes almost entirely from fees. The agency runs on revenue from construction permits and 200-plus types of professional licenses from nearly half a million license holders — not taxpayer dollars.

In fact, the department has amassed a $47 million surplus from those fees, according to the Legislative Fiscal Bureau. The surplus was $4.4 million a decade ago. However DSPS can’t use that money to pay for more staff or technology upgrades without legislative buy-in.

The Joint Legislative Audit Committee voted Tuesday to have the nonpartisan Legislative Audit Bureau review all aspects of the department. The committee’s Republicans voted in favor and the Democrats voted against, with Sen. Tim Carpenter, D-Milwaukee, decrying the Legislature for not adequately funding the department.

“It’s a shame that we needed to have this audit done,” Carpenter said. “We could have taken care of the problem ourselves.”

Marc Herstand, executive director of the Wisconsin chapter of the National Association of Social Workers, told the committee in his 30 years following Wisconsin licensing issues, the department has always been chronically understaffed. But frustration among his members seemed to have peaked in the past two years despite efforts by the Evers administration to improve the agency. 

“(DSPS) has plenty of money to hire the staff like any other business would do in that kind of situation, but they’re not given the authority to do so,” Herstand said. “This makes no rational sense.”

Rep. Mark Born, R-Beaver Dam, a member of the audit committee and co-chair of the Legislature’s Joint Finance Committee, declined to comment on whether the Legislature would add positions in the budget.

The audit comes amid high tension between the Republican-controlled Legislature and Evers over agency administration. It also dovetails with a broader push by conservative activists and some GOP lawmakers in Wisconsin and elsewhere to get the government out of the business of licensing and regulating some professions such as music, art and dance therapists, cosmetology trainees and interior designers.

In August, new DSPS Secretary-designee Dan Hereth told the Legislative Council Study Committee on Occupational Licensing the agency is processing new license applications in 45 days on average — the fastest rate in six years and down from 79 days in 2021. But committee members also heard from license applicants who spent hours on hold when they called the agency and months waiting for licenses to be processed.

“We have gotten an abundance of calls, contacts, constituent cases over the last 12 months,” said Sen. Rob Stafsholt, R-New Richmond, who led the committee. “My office just for my Senate district has handled literally dozens of cases of people who are frustrated and trying to get licenses they qualify for.”

Call center data: Problems began before Evers

The agency’s call center performance began to drop in 2017 under then-Gov. Scott Walker, a Republican, according to data obtained by Wisconsin Watch through a public records request. The department data show just over half of all calls were “agent answered” in 2018. 

The rate improved dramatically in the second half of 2022 after Evers used federal funding to hire an outside firm in June to increase the agency’s call center staff from six to 26. The department also switched to a new phone system with a higher capacity in December 2021, so fewer people now get a busy signal, which wasn’t logged as a call under the old system. A department spokesperson said that explains why the number of received calls under the new system nearly doubled to 400,000 in 2022.

The data show 36% of calls were answered in the first half of 2022, 71% of calls were answered in the second half and 98% of calls were answered in December. The new system makes it difficult to compare the 2022 data with previous years.

The funding from the American Rescue Plan Act for extra call staff runs out at the end of June.

The improvements happened as DSPS launched its new online system, LicensE, in May to begin replacing decades-old systems and paper applications. The department expects to have all professions moved to the new system by the end of this year.

The Legislature has authorized $14.4 million for the technology update, and Evers allocated another $6 million in ARPA funds this past year to replace a computer system that dates back to 1998.

“What I think we will get to when we’re fully automated is much faster turnaround times for most,” DSPS Assistant Deputy Secretary Jennifer Garrett told the committee in November. “We can move that (45-day) average down lower if we are adequately staffed and when the platform is fully implemented.”

Starved of staff, hit by labor shortage 

Garrett also told study committee members the department has struggled to hire and retain license review and call center staff because of pay and working conditions. She said the agency had failed twice to recruit a lawyer to conduct legal reviews. But when the position was opened to remote work, DSPS hired an attorney from Green Bay, reducing the legal review time from nine weeks to six.

Hereth told the committee: “Even with new technology and continuous efforts to improve

efficiency, our volume of work routinely exceeds staff capacity and resources. The bottom line is that we need more than efficiency to deliver the kind of service our applicants want and expect.”

Evers asked for a net increase of 20 full-time positions in the 2019-21 budget and 12 positions in the 2021-23 budget, but Republicans only authorized one new net position in each budget. The department has six fewer positions than it did when it was created in 2011 under Walker.

Department officials have asked for 70 new positions across the agency in their 2023-25 budget request. Evers is set to release his proposal on Feb. 15.

The DSPS surplus is on top of the $85 million in license fees transferred from the department to the state’s general fund over the past 15 years. About $31 million of that is an automatic annual 10% transfer enshrined in statute, but the other $54 million was lapsed under Walker and his predecessor, Democratic Gov. Jim Doyle, to help balance the general fund budget. The 10% transfers remain, but the lapses ended in the 2017-19 budget.

GOP questions management of agency

Rep. Shae Sortwell, R-Two Rivers, chair of the Assembly Committee on Regulatory Licensing Reform, said in an interview the agency probably needs more positions. But Sortwell wants more data to support why the positions are necessary — especially in light of the new LicensE system, which should reduce the agency’s workload.

Sortwell is also skeptical about allowing DSPS employees to work from home up to three out of five days a week. And he claimed the Evers administration failed to properly manage the workload, especially during the pandemic.

In announcing a list of nine bills the committee is recommending the Legislature to take up this session, Stafsholt accused the agency of stonewalling and sending “misleading emails” to license applicants “rather than providing us with the information we requested.” 

The nine bills would, among other things, require the department to post how long it takes to process each license on its website, increase renewal periods for some licenses from two to four years, allow more professionals from other states to obtain a temporary license during a department review and have Wisconsin join an interstate compact to recognize counselor credentials from participating states.

Meanwhile, Wuorinen feels stuck trying to qualify for a job she had already done for a year in Minnesota.

“In any way you put it, this is a crisis,” she said. “When we have a workforce shortage already and we have people waiting nine to 12 months to get a license, it’s not productive.”

The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

After rejecting staffing requests, Wisconsin Republicans approve DSPS audit  is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our our newsletter to get our investigative stories and Friday news roundup.

Listen to Statehouse Bureau Chief Matthew DeFour discuss this story with Civic Media’s Todd Allbaugh.

It’s Election Day 2022 in Sheboygan, Wisconsin, and voters in this majority blue city once again have no chance of electing a Democrat to legislative office.

That wasn’t always the case. New Deal Democrats, running in the wake of a bitter Kohler Co. strike, held the local Senate seat in the 1930s and again from 1983 until 2003. They also held an Assembly seat concentrated on the city in all but four years between 1959 and 2011.

But during the 2011 decennial redistricting process, Republicans split Sheboygan between two Assembly seats, each with more voters from majority red Sheboygan and Manitowoc counties. It’s one of many examples of how Republicans carved Wisconsin’s district boundaries to secure an invincible majority in a politically evenly divided state.

“With the splitting of the city with gerrymandering, that’s the big kicker,” said Calvin Potter, a former longtime Democratic state lawmaker who was Gov. Tony Evers’ high school civics teacher in Plymouth. “It took a city that in the early decades … voted 62% Democrat (and) made two districts in this county — both 57% Republican.” 

When Republicans redrew the lines again in 2021, they further boosted their advantage in the Assembly. Compared with nearly 1,000 statehouse elections across the country between 1972 and 2020, Wisconsin’s efficiency gap in 2018 ranked as the fourth most skewed toward Republicans at 15.4%, according to researchers at Harvard and George Washington universities. Wisconsin’s 2022 results were even more skewed at 16.6%, a Wisconsin Watch analysis shows. 

For relief, Democrats are looking to elect a liberal justice in April to the Wisconsin Supreme Court — which has final say over statehouse redistricting disputes. There’s no guarantee new maps would allow Democrats to win a legislative majority, but they might reverse a general trend of less competitive elections.

Democrats fighting uphill battle

Despite the built-in disadvantage, there’s still some fight left among the Democratic organizers keeping the squash soup warm at the Sheboygan County Democratic Party headquarters on Election Day.

As the 2022 midterm election approached, volunteers came by every day to pick up packets of voter lists and candidate postcards as they ventured out to knock on doors, even during a recent Packers game, said Mary Lynne Donohue, a former Assembly candidate and a plaintiff in a lawsuit that unsuccessfully challenged the 2011 maps as an unconstitutional partisan gerrymander before the U.S. Supreme Court.

When a regular stops in to report that a church serving as a polling place down the street is displaying a “vote to save your religious freedom” message on its electronic marquee — a possible breach of rules banning electioneering at polling places — Donohue talks to the city clerk to ensure neutrality is restored.

Despite all the effort, local Democrats have only one candidate for the Legislature on the ballot. 

Lisa Salgado, a medical assistant of 30 years, challenged Republican incumbent Rep. Terry Katsma, a retired community banker who previously served on the village board in Oostburg, a Dutch farming community about 12 miles south of Sheboygan.

“It becomes very difficult to recruit candidates when we know we’re going to lose,” Donohue said.

In fact, most races in the state are foregone conclusions with just four of the 99 Assembly races in 2022 decided by less than 5 points.

Having local candidates is still important to help the top-ticket candidates, Donohue says. Gov. Tony Evers, on his way to winning re-election by 3 points statewide, ended up losing Sheboygan County by nearly 16 points, but won the city itself by 11 points.

On Election Day, Donohue predicts Salgado might get 43% of the vote — which, she adds, would be a sign Democrats are staging a comeback. Still, Donohue admits, it’s deflating to put all this effort into an ill-fated campaign. 

Salgado ultimately received only 37% of the vote.

“It just verifies for me that gerrymandering is a highly effective way of destroying democracy,” Donohue said.

One of the biggest skews gets bigger

Sheboygan is in some ways a microcosm of what has happened to Wisconsin over the past decade: Republicans run the Legislature from safe rural districts while Democrats, packed into the state’s largest cities, have no ability to enact legislation their constituents support.

Sheboygan Mayor Ryan Sorenson, a former Democratic Party 6th Congressional District chair, said urban voters are only in recent years becoming aware of the effect the lack of representation has had on the city’s ability to advocate for issues that matter to them, such as affordable housing, water quality infrastructure and education, particularly in a school district where students of color are now a majority.

“It’s very watered down and so we don’t necessarily have an advocate that is fully aware of all the city issues that we have,” Sorenson said. “Anecdotally, I think people feel more deflated because they’re like ‘Well it’s gerrymandered, so what are we going to do anyway?’”

Gerrymandering refers to the centuries-old practice of lawmakers redrawing legislative boundaries after each U.S. Census to advantage themselves and their own party and disadvantage the other side. Both Republicans and Democrats do it, although some states have assigned the task of mapmaking to nonpartisan commissions.

After the 2011 redistricting, in which Republicans controlled the Legislature and governor’s office, the Wisconsin Assembly maps became the most skewed toward Republicans in the country over the next five elections, and second most skewed behind Rhode Island, which was skewed toward Democrats, according to research compiled by Chris Warshaw, an associate professor of political science at George Washington University.

In the latest round of redistricting, in which rulings from the conservative state and U.S. supreme courts allowed Republican legislative maps to prevail over objections from Democratic Gov. Tony Evers, Wisconsin’s Assembly skew only got worse.

That’s according to the “efficiency gap,” one of the measurements political scientists have developed to illustrate partisan gerrymandering. The efficiency gap measures how many votes are “wasted” — having no chance to affect the outcome — when one party’s voters are either packed into lopsided districts (Think of Dane County where almost 80% voted for Evers), while others are broken up, or cracked, into districts where the margins are closer, but the party drawing the maps is almost guaranteed to win.

One way to illustrate what packing and cracking in Wisconsin looks like: In the 10 closest Assembly races that Republicans won this year, the average margin was 7.5 points. In the 10 closest for Democrats it was 15.2 points. Wisconsin Watch didn’t analyze the Senate, where Republicans will control 21 of 33 seats with one vacancy in January, because only half of the seats were up for election this year with the rest up in 2024.

The Wisconsin Assembly’s efficiency gap under the 2011 maps was 11%, according to PlanScore, a nonprofit that tracks district fairness, where Warshaw is one of the principals. 

PlanScore has yet to rate the 2022 results. But using the efficiency gap formula provided by Warshaw and the 2022 vote totals, Wisconsin Watch estimated the latest Assembly election results had an efficiency gap of about 17% favoring Republicans.

While the numbers can be useful to compare states, they essentially confirm an obvious problem: Wisconsin is nearly evenly divided between Democrats and Republicans — Evers won 51% to 48% — yet Republicans control nearly two-thirds of the legislative seats.

“This is not normal,” Warshaw said. “In all of American history we don’t observe many cases like this. … This is way out in the tail of any kind of distribution of how democracy is supposed to work.”

Latest maps show more gerrymandering

When Republicans drew the maps in 2011, they spent hours working under secretive conditions tweaking each iteration of the map to ensure a majority that could withstand even a Democratic wave year. Sheboygan is one example where dividing a city helped produce an extra Republican seat.

Another was in the Milwaukee suburbs, where Republicans drew two districts in 2011 that cut in half both conservative Brookfield and increasingly liberal Wauwatosa to hold both the 13th and 14th districts. Despite that, by 2020, Democrats had won both seats.

But gerrymandering isn’t always divide and conquer; this time around there was some retreat and retrench. The latest maps created a Republican 13th District centered on conservative Brookfield and a Democratic 14th District focused on Wauwatosa. A Republican newcomer won the 13th by 13 points, and the Democratic incumbent won the 14th by 27 points.

In the latest redistricting, Republicans also drew another seat in the district that includes Superior in far northwestern Wisconsin, which, like Sheboygan, will no longer have Democratic representation in the Legislature.

Marquette Law School research fellow John Johnson calculated the 73rd Assembly District moved 3 points in favor of Republicans after the 2021 redistricting. In fact, Republican Angie Sapik — who had deleted her Twitter history in which she had denied the 2020 election results, supported the Jan. 6, 2021 insurrection and denounced the Republican Party — defeated Democrat Laura Gapske by 2 points in what was one of the most bitter battles in the state.

Both sides poured hundreds of thousands of dollars into the race as outside groups attacked Gapske’s vote on the Superior School Board supporting a fifth grade human growth and development curriculum that explained how a person’s sex and gender can differ.

Republicans made the district more friendly by adding more of conservative Burnett County to the 73rd, effectively doing to Superior’s Democratic voters what they did to Sheboygan’s Democrats in 2011.

“The intention of the Republican map drawers up there was really obvious,” Johnson said. “They were trying to tilt the districts to Republicans.”

GOP blames Dems

Republicans deny they skewed the maps, and instead blame Democrats for packing themselves into cities and candidates who don’t appeal to outstate voters.

Senate Majority Leader Devin LeMahieu, R-Oostburg, and Assembly Speaker Robin Vos, R-Rochester, declined interview requests. They said at a recent WisPolitics luncheon that Democrats should have been able to win some of the closely contested races in the state, but their views have alienated rural voters.

“Republicans won because I think we had better candidates, better organization and a better message,” Vos said.

University of Wisconsin-Madison political science professor Ken Mayer examined the geographic phenomenon and found the bunching of Democrats in cities accounted for a 2- to 3-point Republican advantage — nowhere near the actual advantage the party currently enjoys.

“There will be people who deny it to you with a straight face, but there is no empirical doubt that this remains the most gerrymandered state in the country,” Mayer told Wisconsin Watch.

But it’s not just gerrymandering. Democrats are less likely than Republicans to vote in races that aren’t at the top of the ballot, a phenomenon known as “roll-off,” said Gaby Goldstein, co-founder of the liberal Sister District Project.

In Wisconsin, Evers got more votes than Democrats in 73 out of 83 Assembly districts where they fielded a candidate, a Wisconsin Watch analysis finds. By contrast, his Republican opponent Tim Michels got more votes than the Republican Assembly candidate in only four of the 89 Assembly districts where they fielded a candidate.

“Republicans have invested generously over generations in building not just infrastructure, but narrative, political ideology that centers state power in a way that is emotionally resonant to voters,” Goldstein told Wisconsin Watch. Her organization is urging Democrats, who she said have historically focused on federal power building, to focus more on state politics.

Another factor that could be hurting Democrats is that gerrymandering can have a cumulative negative effect on the party out of power, according to research by Warshaw and Harvard Law School professor Nicholas Stephanopolous.

“When a districting plan is biased against a party, its candidates contest fewer legislative seats and have worse credentials when they do run, its donors contribute less money, and its voters are not as supportive at the polls,” they concluded.

‘Democracy is not real’

That’s how Assembly Minority Leader Greta Neubauer, D-Racine, sees it. In an interview, Neubauer said gerrymandering has created “a self-reinforcing cycle” in which candidate recruitment and civic engagement are diminished. The result, she said, is that “democracy is not real when it comes to the Legislature in Wisconsin.”

“Republicans right now are insulated from the will of the people,” she said. “Republicans have been able to starve local governments of resources and escape consequences for that because of gerrymandering.” 

Neubauer noted that the GOP-run Legislature heard only 2% of Democrat-authored bills in the past session. “They refuse to act on many policies that have widespread support in Wisconsin,” she said, “because they don’t want Gov. Evers to be seen as successful.”

Polling suggests there is majority support in Wisconsin for some of those measures, including legalizing marijuana and abortion in most cases, accepting federal Medicaid expansion funding, requiring criminal background checks for private gun sales and — notably — switching to nonpartisan redistricting.

A majority of both Democrats and Republicans support nonpartisan redistricting, according to a recent poll conducted by UW-Madison communications professor Mike Wagner. Support ranged from 51% among suburban Republicans to 70% among urban Democrats. Among rural Republicans, who likely benefit the most from the current maps, 54% support nonpartisan redistricting, the late October poll of 3,064 Wisconsinites found.

Less competitive districts

The late Bill Kraus, a Republican and longtime advocate for transparent government and bipartisan compromise who led Common Cause in Wisconsin for 20 years, lamented in a June 2004 blog post the “widespread megalomania that is the undesirable byproduct of representing a safe district.” He noted there were only about 10 “even remotely competitive” seats in the Legislature.

That year, there were just 15 Assembly races within a 10-point margin. In the next three election cycles the average was 22. After the 2011 redistricting, the average in the next five cycles dropped to 11. This year there were only eight Assembly races within that margin.

Kraus advocated for “something dramatic” to be done to address the problem and suggested redistricting be conducted by “dispassionate, disinterested outsiders.”

Since 2011, 56 of Wisconsin’s 72 counties have either passed a county board resolution or ballot referendum endorsing nonpartisan maps, according to a tally by the Wisconsin Democracy Campaign.

Nonpartisan maps don’t necessarily advantage one party over the other — unless one party has more voters — nor does it ensure competition. In Iowa, maps are drawn by a nonpartisan state agency, yielding legislative maps in the last decade with an efficiency gap less than 4%. 

But Republicans won all four congressional districts and expanded their majorities in the state House and Senate, where they now have their largest majority since 1980. Of the 100 House races, 44 were uncontested.

No initiatives, binding referenda in Wisconsin 

In Michigan, by contrast, Democrats took control of the state Legislature for the first time in 40 years, winning a 56-54 majority in the House and a 20-18 majority in the Senate. 

Michigan’s Democratic wins came after a public ballot initiative in 2018 with 61% support created an independent redistricting commission following two decades of Republican gerrymandering. The maps created by that commission were in place for the first time this year.

The campaign to change Michigan’s system cost $15 million to collect 428,000 signatures and defend against Republican challenges before the state Supreme Court, said Nancy Wang, executive director of Voters Not Politicians, which organized the effort.

The major catalyst, Wang said, was the Flint water crisis, in which the city started pumping lead-tainted drinking water from the Flint River to save money while state-appointed emergency managers were in charge. Republicans expanded the emergency manager powers in 2011 and voters repealed it in 2012, but Republicans passed a different version in 2013.

Wisconsin doesn’t provide the public with the option to change state law through ballot initiative, which Wang said makes it difficult to know how to solve the gerrymandering problem.

“It’s a really tough question,” Wang told Wisconsin Watch. “Ordinarily, what you would do as a voter to demand change is you would lobby and threaten to oust your politicians if they didn’t listen to you. Well, if they’re insulated from any kind of repercussions, then what power do you have?”

Her suggestion: Continue to agitate and educate voters to the point where they demand change in such numbers that they overcome the political advantage that politicians have from gerrymandering.

A court solution?

Democrats are eyeing the April 4 Wisconsin Supreme Court election as an opportunity to win a majority that might toss out the new legislative maps. 

Candidates so far include conservative former Justice Daniel Kelly, Dane County Circuit Judge Everett Mitchell, Milwaukee County Circuit Judge Janet Protasiewicz and Waukesha County Chief Judge Jennifer Dorow, who presided over the recent trial of the Waukesha Christmas parade killer. The winner will replace retiring conservative Justice Patience Roggensack.

Should a liberal candidate win in April, Democrats would likely wait until the new justice was seated in August before bringing a case. That would leave little time  before the 2024 election.

Doug Poland, a lawyer who represented plaintiffs in challenges to the 2011 maps, noted there’s already a robust case file on gerrymandering in the federal court system.

In Gill v. Whitford, the case that went all the way to the U.S. Supreme Court, a three-judge federal panel found the 2011 maps were “an unconstitutional political gerrymander.” The panel noted the lopsided margin for Republicans was “not explained by the political geography of Wisconsin nor is it justified by a legitimate state interest.”

The U.S. Supreme Court later ruled the federal courts do not have a role to play in settling disputes over political gerrymandering. But that left open the ability of state courts to intervene.

“There is already a robust holding of law out there that partisan gerrymandering violates the constitution,” Poland told Wisconsin Watch. “It would be wholly disingenuous of any state supreme court considering this issue to look at those decisions and say, ‘We disagree with you.’ ”

Republicans would likely counter that the Wisconsin Supreme Court has already settled the mapping dispute. Honoring court precedent, a legal doctrine known as stare decisis, is something even liberal justices have defended, said Misha Tseytlin, the state’s former Republican-appointed solicitor general, who argued in favor of the maps in the Gill case.

Even if Democrats were to successfully challenge the maps as a partisan gerrymander, they would still have to come up with a way to know where to draw the line on what constitutes a partisan gerrymander. Some have suggested prohibiting maps with an efficiency gap above 8%. However U.S. Supreme Court Chief Justice John Roberts referred to that measuring stick as “sociological gobbledygook.”

Tseytlin noted in New York, where partisan gerrymandering was rejected by a court and a special master drew new district boundaries, Democrats won the governor’s race by 6 points, but are expected to retain a supermajority in the state Legislature. A major reason for that, he said, was the power of incumbency.

“There are dynamics that often account for why incumbent state legislators win, regardless of the map,” Tseytlin said. “Because incumbents have a strong advantage.”

An alternative way to elect representatives

Nonpartisan mapmakers could be instructed to keep communities of interest intact, something that has broader civic benefits, according to a 2013 study by College of New Jersey political science professor Daniel Bowen.

Not only are constituents more likely to be ideologically similar to their representatives, they’re more likely to contact their representative, be satisfied with that contact, recall their representative’s work benefiting the district and know basic information about their representative. Independents and members of the opposite party also reported positive outcomes in districts that kept municipalities together. 

“At the most basic level, a legitimate districting system must fairly convert votes into seats,” Bowen told Wisconsin Watch. “Wisconsin is a prime example for how clever mapmakers can adhere to some traditional districting principles … while producing extreme maps that favor one political party. That is a major problem that threatens the legitimacy of democratic governance in Wisconsin and is especially noticeable in a state with such highly competitive elections.”

But even within communities there are voters with different views and interests. One way to keep more of them engaged could be new legislative configurations and voting systems that have been tried in some European countries, said Mark Copelovitch, a political science professor at the La Follette School of Public Affairs at UW-Madison who has studied alternative voting and redistricting models abroad.

For example, instead of single, winner-take-all districts, the state could set up multimember districts that could send two or more members of different parties to a legislative chamber, a system used in nine states. 

Researchers at Cornell University concluded in a 2020 paper that the fairest and most geographically compact results are accomplished with three-person multimember districts combined with ranked-choice voting — in which voters rank candidates, with the one getting the most first-place votes winning. Surplus votes are transferred to voters’ next preferences.

Under such a system there’s a greater chance places like Democratic Milwaukee and Dane counties, which have the state’s second- and third-largest share of Republican voters behind Waukesha County, could send Republicans to the Legislature, Copelovitch said.

It might also allow Sheboygan to elect a Democrat to the Legislature again.

The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Wisconsin’s Assembly maps are more skewed than ever. What happens now? is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletter to get our investigative stories and Friday news roundup.

On this Nov. 14, 2022 episode of Newsmakers, WisconsinEye Host Lisa Pugh sits down with Shawn Johnson, Wisconsin Public Radio Capitol Bureau Chief, and Matthew DeFour, Wisconsin Watch Statehouse Bureau Chief, to share their latest thoughts on Wisconsin’s future. One week post-election in Wisconsin, and some questions still remain unanswered. The armchair quarterbacks have been working overtime analyzing why voters split their ballots while others are wondering if divided government in Wisconsin will yield different results, particularly as we head into a new budget season.

WisEye Morning Minute: Election 2022 Recap with Capitol Reporters Shawn Johnson and Matthew DeFour is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletter to get our investigative stories and Friday news roundup.

In a far northern Wisconsin Assembly district — critical for Republicans to win a legislative supermajority on Tuesday — GOP candidate Angie Sapik’s campaign website presents many of the key issues Republicans are emphasizing on the campaign trail this year: fighting inflation, cutting taxes, giving parents more control of schools.

Nowhere does Sapik mention debunked claims of widespread 2020 election fraud or even the more sanitized party line about “election integrity.” Yet in thousands of now-deleted tweets, Sapik spewed profanities, endorsed political violence, embraced 2020 election conspiracies, supported the Jan. 6 U.S. Capitol insurrection and even denounced her own Republican Party, describing it as “a thing of the past” split between “RINOs and true Patriots.” 

The contrast between Sapik’s past rhetoric and current election messaging speaks to a broader family feud within the Republican Party of Wisconsin, something state GOP chair Paul Farrow said has been “one of the biggest challenges we had all year.”

On one side are the Trump faithful, still wanting to overturn the 2020 election results. On the other are more traditional conservatives, led by Assembly Speaker Robin Vos, who tried to appease Trump supporters by passing election-related bills — but routing them away from one of the Legislature’s top election deniers. 

Vos also spent some $1.5 million in taxpayer funds on a fruitless 2020 election investigation. Still, some Republicans called to “toss Vos” — a move that nearly cost him his district seat in the August primary.

“We’re listening to both sides,” Farrow told Wisconsin Watch. “There’s more and more that are realizing that the focus right now is to win in 2022. If we do that then we can start looking at election integrity moving forward. … Not everybody is in agreement on that, but I would say the vast majority now is in that position.”

Emblematic of the GOP divide is the party’s gubernatorial nominee Tim Michels, who early in the primary suggested the Legislature could perform the legally impossible feat of decertifying the 2020 election, then said it wouldn’t be a priority before settling on “everything will be on the table.”

In the last Marquette Law School Poll before Tuesday’s election, 60% of Wisconsin Republicans continued to hold doubts about the 2020 election. About a third of independents and less than 1% of Democrats polled expressed a lack of confidence in the outcome.

Reports and reviews by the nonpartisan Legislative Audit Bureau, The Associated Press, the conservative Wisconsin Institute for Law and Liberty and partial recounts in Dane and Milwaukee counties found no widespread fraud and confirmed Joe Biden’s win in Wisconsin.

Among legislative candidates, Wisconsin Watch found at least 22 of the 68 Republicans running in Assembly districts where they have a slim to solid chance of winning have cast doubt on the 2020 election results. That count is based on reviews of past statements and websites and does not include support for election law changes, an overhaul of the Wisconsin Elections Commission or Vos’ election investigation — all of which garnered widespread Republican support.

Which Republican Party will emerge?

Mixed messaging like Sapik’s makes it difficult to know what kind of influence the most strident proponents of the false 2020 stolen election narrative will have next session, when the Legislature could play a crucial role in changing election rules — or even certifying the results of the 2024 presidential election.

Farrow said he expects Vos will return as speaker next session after a “robust conversation.” A few of Vos’ GOP allies, like Rep. Tyler August of Lake Geneva, beat back primary challenges from candidates who emphasized election issues.

The Legislature’s most vocal election denier, Rep. Tim Ramthun, R-Campbellsport, left office to run unsuccessfully for governor. Ty Bodden, the Republican running unopposed in Ramthun’s district, lists first on his campaign’s issues web page: “Secure our elections, eliminate any chance of election fraud and restore trust in our election process.”

The majority of Republicans running in safe GOP or competitive districts don’t mention election integrity or fraud on their websites, a Wisconsin Watch review found. In the 12 most competitive Assembly districts, only two Republican candidates even mention election issues on their campaign websites.

Even though Republican candidates are focusing on inflation, tax cuts, education reform and crime, the only bills mentioned in detail on the state party’s website are 29 election-related measures the party introduced this past session.

On Wednesday, the USA TODAY NETWORK-Wisconsin editorial board took the rare step of making an election endorsement, backing Evers and Democratic U.S. Senate candidate Lt. Gov. Mandela Barnes. The board noted their opponents, Republicans Michels and U.S. Sen. Ron Johnson, “continue to cast doubt on the 2020 election,” arguing they lack a “commitment to basic democratic principles” that is “dangerous.”

Abortion, Trump and democracy are ‘not the winning hand’

Assembly Democratic Leader Greta Neubauer, D-Racine, said just because Republicans have stopped talking about elections on the campaign trail doesn’t mean they have dropped plans to overhaul the election system in ways to further enhance their electoral edge.

“They don’t want voters to actually weigh in on those issues,” Neubauer told Wisconsin Watch. “They want to be able to make those (election) process changes and hope that no one notices.”

Wednesday’s Marquette poll found the top issues concerning all voters are inflation, public schools, crime and gun violence. “Accurate vote count” ranked fifth, ahead of abortion, with 56% saying they are very concerned about the election issue, compared with 68% who said the same about inflation. 

But, among Republicans, “accurate vote count” is now the top issue, with 81% saying they are very concerned.

Vos didn’t respond to an interview request, but former Assembly Speaker Scott Jensen said Republican candidates are focused on the issues that voters care about.

“Democrats’ ads are all about abortion, Trump and democracy,” Jensen, a Republican, said at a recent WisPolitics luncheon. “That’s not the winning hand. It may stave off some losses in certain places. …They are not going to be able to run the table with that.” 

University of Wisconsin-Madison journalism professor Mike Wagner said the Republican focus on “election integrity” is “genius” in that “it’s vague enough that supporters will read into it what they want to. Someone can say, we know about all the problems with 2020. An election denier will say, ‘Yes it was stolen.’ ”

GOP control secure in Wisconsin

Democrats concede Republicans will continue to control the Senate and Assembly, largely due to Republican-drawn political maps that insulate GOP majorities even in Democratic wave elections.

Republicans say a two-thirds supermajority that could override a gubernatorial veto is within reach, although they acknowledge it’s a stretch. In the Senate it’s considered far more likely, with Republicans needing to pick up only one seat for a two-thirds majority. 

Republicans are targeting the 25th and 31st Senate districts, both in Trump strongholds in northwest Wisconsin. Neither of the Republicans in those two races — Romaine Quinn and Dave Estenson — mention election issues on their websites.

Of the dozen Assembly seats that appear to be competitive, Democrats only have to hold onto three, including three districts that Biden won comfortably in 2020. And for Republicans to win those seats, they likely would need Michels, the Republican gubernatorial candidate, to do well enough to defeat incumbent Democratic Gov. Tony Evers, which would give them control over legislating anyway.

But Republicans are bullish about picking up longtime Democratic districts like the open 73rd seat held by retiring Rep. Nick Milroy, D-South Range, where Sapik faces Superior School Board member Laura Gapske.

The pro-Republican Americans for Prosperity Wisconsin has spent more money on the race than any other Assembly seat so far this cycle, and the Republican Assembly Campaign Committee recently pumped more than a quarter million dollars in cash and in-kind donations to Sapik’s campaign. Democrats have fought back with more than $300,000 in contributions to Gapske and   a website with Sapik’s deleted tweets recovered using an internet archive service.

Gapske told Wisconsin Watch the race has been one of the most “hostile” in the state this year. She has filed three police reports after receiving nasty phone calls. The calls came after mailers and radio ads with her personal phone number attacked her support for a fifth grade human growth and development curriculum explaining how a person’s sex and gender can differ.

The 73rd District has been represented by Democrats for decades and despite new, more Republican-leaning maps, Gapske said she is hopeful she can win, especially after knocking on doors and talking to Republicans fed up with Trump.

“There are still real Republicans out there,” Gapske said, “and they are not for Jan. 6.” 

Calls for ‘election integrity’ continue

While Sapik, who did not respond to a Wisconsin Watch interview request, is staying mum on the 2020 election, other GOP candidates are continuing to make election integrity a top issue.

In the 74th Assembly District, which neighbors the 73rd along Lake Superior and would be another Republican pickup of a longtime Democratic seat, Republican Chanz Green highlights five issues including “Securing our elections, clarifying election law, and guaranteeing that your vote counts!”

Tom Michalski lists election integrity first on his priorities webpage in the 13th Assembly District, a suburban Milwaukee district Democrats narrowly flipped in 2020 but which Republicans expect to win back after redistricting.

“Events in recent elections have eroded the public trust in the election process,” Michalski states on the page. “Confidence in the election process must be restored. Changes in Election Law are a necessity.”

The Washington Post reported there are nearly 300 Republicans on ballots across the country who have denied or questioned the outcome of the 2020 presidential election. Those counts only include top-ticket races for statewide office and Congress.

In Wisconsin, the Washington Post listed U.S. Reps. Scott Fitzgerald, who represents the 5th Congressional District between Milwaukee and Madison, and Tom Tiffany, who represents the 7th Congressional District in northwest Wisconsin. The paper also included Republican Derrick Van Orden, who attended the “Stop the Steal” rally in Washington on Jan. 6 and is running for the open 3rd Congressional District seat in western Wisconsin, and Michels, the GOP nominee for governor.

A Wisconsin Watch review shows 11 legislative incumbents signed a letter in November 2020 asking Vice President Mike Pence not to certify the election results. They are Sen. Andre Jacque of De Pere, and Reps. Janel Brandtjen of Menomonee Falls, Robert Brooks of Saukville, Rick Gundrum of Slinger, Dan Knodl of Germantown, Gae Magnafici of Dresser, Dave Murphy of Greenville, Jeff Mursau of Crivitz, Michael Schraa of Oshkosh, Shae Sortwell of Two Rivers, and Chuck Wichgers of Muskego. Of those, seven have campaign websites, and only two of them — Brandtjen and Gundrum — mention elections as an issue.

Rep. David Steffen of Green Bay didn’t sign the letter, but along with Mursau joined a lawsuit seeking to block certification of the election results. Rep. Elijah Behnke also didn’t sign the letter, but was filmed in his office calling Vos a “swamp creature” and voicing support for election conspiracies.

Some have tried to walk a finer line, leaving open doubt about the 2020 election results. Rep. Ron Tusler of Harrison, for example, told the New York Times earlier this year that evidence of fraud “might be out there.” When it comes to decertification of the 2020 election results, Tusler said, “It’s possible we try it later.”

The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Many in Wisconsin GOP drop ‘stop the steal’ talk, play up inflation, crime is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletter to get our investigative stories and Friday news roundup.

If Democratic Gov. Tony Evers loses on Tuesday — and Republican Tim Michels becomes governor — Wisconsin’s Republican Party has a laundry list of voting and election changes it would like to enact.  

The party’s election integrity web page lists 28 election-related bills. Many of them did not make it through the Legislature. Almost all of the rest were vetoed by Evers. Only one of them, requiring the Wisconsin Elections Commission to publish meeting minutes within 24 hours, was signed.

Evers’ office noted there were two other election-related bills the governor signed this past session that aren’t listed on the GOP website. They allowed 16- and 17-year-olds in home school, not just public and private school, to serve as poll workers, and required public notice if an incumbent decides not to run for re-election.

The bills that didn’t pass because of an Evers veto — but likely would pass if Republicans control the governor’s mansion in early 2023 — would:

• Prohibit outside funding of election administration. The bill was in response to a nonprofit funded by Facebook founder Mark Zuckerberg that distributed millions of dollars to assist more than 200 Wisconsin municipalities with COVID safety and voter turnout during the 2020 election;
• Make it a felony for someone working in a nursing home to coerce a resident to request an absentee ballot;
• Streamline the state process for handling election complaints;
• End the practice of indefinitely confined voters automatically receiving absentee ballots; require them to provide a photo ID to vote;
• Require nursing homes to notify next-of-kin when special voting deputies will be visiting;
• Require state election officials to check the immigration status of registered voters and to check voter records against state Department of Motor Vehicles records;
• Give the Legislature oversight of federal election funding;
• Ensure the Wisconsin Elections Commission has bipartisan legal counsels, rather than nonpartisan;
• Have the elections commission report any failures by state agencies to follow election laws;
• Allow juror information to be used to correct voter rolls;
• Limit who is allowed to deliver a completed absentee ballot;
• Reduce the maximum distance poll observers can be positioned in polling places from 8 feet to 3 feet;
• Expand legal jurisdiction for prosecuting election-related crimes from the county where an alleged incident occurred to any prosecutor within the same election district.

Retiring Sen. Kathleen Bernier of Chippewa Falls, who was one of the first Wisconsin elected Republicans to acknowledge President Donald Trump lost the 2020 election, has been a staunch defender of the state’s election system. She’s frustrated that Evers didn’t sign more bills to clarify election laws that are now being sorted out through court decisions. Some of the bills that passed included both favorable and unfavorable provisions for Democrats, she said.

“Fraud prevention and election administration starts with the Legislature with laws that are signed by the governor,” Bernier said at a WisPolitics luncheon in September. “And so that was one of the challenges on the legislative side to get everyone off the ceiling down to the floor and talk about what we can really do in a responsible manner.”

The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

Wisconsin GOP has sweeping agenda to ensure ‘election integrity’ is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.

Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletter to get our investigative stories and Friday news roundup.

Listen to statehouse bureau chief Matthew DeFour discuss this story on WPR’s show Central Time.

Conservative activists are pushing officials to remove thousands of people from Wisconsin’s voter rolls, pointing to holes in the state’s voter database that have allowed some ineligible voters to cast a ballot.

But their efforts also have spread misleading information, Wisconsin Watch found, conflating ineligible and eligible voters and sowing doubts about the upcoming election during a volatile time for American democracy.

Such efforts aren’t unique to Wisconsin. The New York Times recently reported on attempts in Georgia, Michigan and Texas to have tens of thousands of people removed from voter rolls. The newspaper reported the effort — which includes instructions from an influential think tank with close ties to former President Donald Trump — aims to flood election offices with challenges that are costly and time-consuming.

The activist groups include the Thomas More Society and Wisconsin Voter Alliance, whose members challenged the 2020 election results and worked on the more than $1 million taxpayer-funded 2020 election investigation that Republican Assembly Speaker Robin Vos shut down in August. 

Another effort targeting thousands of voters who might have changed addresses is underway by a group run by Peter Bernegger, who previously filed numerous complaints with the Wisconsin Elections Commission that it deemed “frivolous.”

On Sept. 27, Wisconsin Voter Alliance president Ron Heuer, who worked on the 2020 election investigation, warned local clerks that their systems are vulnerable because, by his estimate, there are potentially thousands of people under court-ordered guardianships whose votes could be fraudulently manipulated. He pointed to the case of an Outagamie County nursing home resident who voted in 2020, even though a court had ruled she was “incompetent” to vote months earlier.

Officials acknowledge gaps

A Wisconsin Watch investigation has found a yet-to-be-determined number of Wisconsinites whom a court has deemed incompetent to vote are still listed as active voters — and actually cast ballots in past elections. 

Dane County Clerk Scott McDonell said he is reviewing the 1,013 ineligible voters in Dane County deemed incompetent after a sample of 20 included two who were still listed as active in the Wisconsin Elections Commission’s voter files — one of whom voted while ineligible in April 2019.

“We’re going to review our data and make sure it’s accurate,” McDonell told Wisconsin Watch.

The total number, although unknown, is likely too small to have affected the results of the 2020 election, in which 3.2 million cast ballots in Wisconsin.

It is certainly less than Heuer’s claim because in his warning to the state’s 1,800 clerks, he conflated people under a court-ordered guardianship, many of whom can vote, with the much smaller subset of those who have lost voting rights. And the Outagamie case — while indeed an example of someone who shouldn’t have been able to vote in 2020 — shows how administrative error is the most likely reason these ineligible voters cast ballots.

Heuer’s work has already prompted public officials to take action. On Oct. 3, the Wisconsin Elections Commission issued a guide to local election clerks warning they cannot purge voters unless they find “beyond a reasonable doubt” a voter is ineligible. “Inactivating a record based solely on the allegations of a private party,” the agency wrote, “is unwise and may violate the law.”

WEC spokesman Riley Vetterkind acknowledged to Wisconsin Watch the system for tracking incompetent voters could be improved, although it would require a legislative fix to ensure they are tracked the same way as other ineligible voters, such as felons still serving a sentence.

The WEC also has changed its voter data so that the public can’t see the names and addresses of those who have been identified as “incompetent” — data that state law requires court officials to keep private. WEC made the change in August after it released that data to Heuer, who used it to build his case that thousands of ineligible voters could still be on the voting rolls.

Heuer’s group is now suing the court officials who handle guardianship records in 13 counties to access the names and addresses of everyone placed under a court-ordered guardianship. The group’s earlier requests for those records were denied. Heuer said their goal is to determine the true number of ineligible voters who have cast ballots.

The push to purge names from the voter rolls — from Heuer, Bernegger and others — is the latest front by partisan activists who have relentlessly challenged the validity of the 2020 election and now may be trying to create grounds to dispute future election results, according to David Becker, a non-voting board member of the Electronic Registration Information Center (ERIC), which Wisconsin and 32 other states — run by Republicans and Democrats — use to maintain their voter rolls.

Research finds little fraud

Think tanks on the left and right agree there is little fraud in U.S. elections. The conservative Heritage Foundation tracks “proven” cases of electoral fraud nationwide. By its numbers — which it says are not comprehensive — there were four instances of fraud in Wisconsin in 2020: two of them controversial prosecutions in Fond du Lac County where voters had listed a UPS store where they get their mail as a physical address. Experts have described some of these instances as incorrect votes and not fraud because the voters didn’t know their registration was improper.

Election watchdogs say the specter of systemic corruption at the polls is dangerous because it undercuts the public’s faith in democracy.

“Widespread fraud does not exist,” said Lauren Miller, a lawyer with the liberal Brennan Center for Justice that tracks elections. “It’s always a serious concern when people believe the lie that their elections are rigged.”

Becker said age-old attempts to “artificially inflate” voter list accuracy bring more risks in the current climate.

“When we get to the point where we can’t accept that our side has lost an election, the next natural step is political violence,” Becker said. “And that is not a hypothetical. We have already seen this. 

“When tensions get as high as they are, when grifters have been incentivized to keep the anger going to keep donations flowing in, then you get a very, very dangerous situation.”

Number of incompetent voters disputed

The activists presented their information about incompetent voters to an Assembly committee, which then pressed the Elections Commission on the matter. On Sept. 22, the WEC responded to the Legislature saying it had already begun an independent audit of its voter roll data related to voters deemed incompetent and is working with court officials to “improve the reporting and inactivation” of such records.

On Sept. 27, Heuer warned the state’s more than 1,800 clerks that there are some 15,000 Wisconsin residents under a court-ordered guardianship, but fewer than 1,200 listed in WEC’s voter roll file as incompetent. Heuer concluded the true number of incompetent voters is underreported and thus the whole system is vulnerable to “elder voting abuse.”

But the information he cited was misleading.

The voter roll data file is a constantly updated public record with voter names and addresses that anyone in the public can obtain for $12,500. Heuer obtained a version of the file with about 1,200 names and addresses of voters listed as “ineligible” and the reason “incompetent.”

When Heuer broke down the list by county, he found several counties had zero ineligible voters listed as incompetent. When he shared that information with county court officials, several told him that there were far more people adjudicated incompetent to vote in their county than were listed in the WEC database.

“It really caused a tizzy,” Heuer said.

He then requested guardianship numbers in each county between 2016 and 2021. Based on responses from about a third of the state’s district courts — and using a per capita projection — he came up with the 15,000 estimate.

However, the numbers Heuer used include everyone placed under a guardianship — even though not all of them have lost their right to vote. Also some are deceased — and some may never have been registered to vote — so they wouldn’t appear in the public voter roll file. And some people placed under a guardianship and deemed ineligible years ago may have had their right to vote restored.

WEC keeps incompetent voter data in a non-public file that is accessible to local clerks, who must review it periodically to update the registration status of voters, Vetterkind said.

“It is possible you may find voters who, despite being adjudicated incompetent by a court, registered, continue to be registered, or voted in an election(s),” Vetterkind said, although he declined to estimate how many. “These cases are unfortunately a product of the limitations that state law currently places on the process for centrally compiling adjudicated incompetent records.”

Guardianship numbers parsed

Dane County Clerk of Courts Carlo Esqueda, who is also the county’s register in probate, told Heuer in an August email that there were 1,004 people in Dane County placed under guardianship between 2016 and 2021. But he also warned him that he shouldn’t conflate guardianship numbers with the much smaller subset of incompetent voters. Heuer never asked for the smaller list.

Esqueda told Wisconsin Watch that after removing deceased voters and those who can still legally vote, the number of incompetent voters shrank to 281.

“I have told Mr. Heuer that, as have several of my colleagues, and he refuses to back off at least the strong implication that guardianship equals the loss of the right to vote,” Esqueda said.

Responded Heuer: “In future communications we will be refining our numbers as information becomes available. When we get the info, we will share it with the public.”

McDonell told Wisconsin Watch there are 1,013 people from Dane County listed as incompetent in the WEC’s files since 2007, including 75 marked in the voter file as inactive. In the sample of 20, he found eight had never registered, one was inactive because of a finding of incompetence, nine were inactive for other reasons — such as being deceased — and two were active, including the one who voted. That person was adjudicated in November 2018 and voted in April 2019, but has not voted since, McDonell said.

Possible out-of-state movers targeted

Other groups are also pushing clerks to purge voter rolls. In September, Wisconsin clerks received an email that claimed about 47,789 people had moved out of the state but, according to Bernegger, of the Wisconsin Center for Election Justice, were still active voters.

Bernegger asked clerks around the state to mark those who had left the state as “inactive” on the voter rolls. 

In his email, which Wisconsin Watch obtained, he said he used WEC and the U.S. Postal Service’s change of address data to find voters who should be removed. 

Simply relying on something like the USPS database, which is optional and doesn’t include someone’s date of birth, to identify people who moved is problematic, said Becker, the ERIC board member and executive director of the Center for Election Information and Research.

ERIC works with states to identify voters who have moved out of a state and therefore are no longer eligible to vote there. But, he added, each state then relies on its own laws and policies before a voter is removed. In Wisconsin, local clerks contact voters directly to see if they’ve actually moved.

ERIC’s ‘sophisticated’ system

Wisconsin’s GOP-run Legislature mandated that the state join ERIC in 2015 to improve voter roll maintenance.

The software used by ERIC is “extremely sophisticated,” costs a lot of money and uses non-public data to compile the lists sent to states, Becker said. 

Election officials and local clerks should strive to keep voter rolls as accurate as possible, Becker said, adding that every state inevitably has voter lists that include people who are no longer eligible and exclude eligible voters.

Both are a problem, he said, but the reality is that “well run” and “largely accurate” voter rolls pose little danger as very few ineligible voters are knowingly or unknowingly voting illegally.

“That number is not zero, but it’s really close to zero,” Becker said. “It’s remarkable how close it is to zero.”

Keeping the voter rolls accurate is an “essential function for all election officials,” WEC’s Vetterkind said. He added that the work of third-party groups is welcomed as they can sometimes help find “errors and inaccuracies.”

However, Vetterkind said these groups are not screened, can be partisan or can make incorrect statements about the law or rely on incomplete information. Responding to these groups is up to local clerks, Vetterkind said.

Bernegger acknowledged in his September email to clerks that not all 47,000 people he found had definitely moved and were no longer eligible voters. Bernegger and his attorney did not return messages seeking comment. 

Activist has history of complaints

Bernegger previously filed complaints with the WEC about voters having improper addresses on their voter registrations. WEC dismissed the complaints, fined Bernegger $2,400 and called the complaints “frivolous.” Bernegger has yet to pay that fine, according to the WEC.

Fond du Lac County District Attorney Eric Toney, the Republican nominee for state attorney general, seized on Bernegger’s information and charged five people with felonies for registering to vote using a local UPS Store address.

One of those people previously told Wisconsin Watch that she didn’t know it was illegal to use that address, where she gets all her mail, as her voting address. 

ERIC has become a target of activists, who claim it is a liberal voter fraud plot. Criticisms of the organization are similar to those against ballot drop boxes, absentee ballots and machines that count votes, Becker said, calling them “guardrails of democracy” that have contributed to more accurate and secure elections.

“And when the guardrails of democracy are attacked … that creates a period of uncertainty in which the losing candidate can incite anger and violence,” he said. “And that may be the intended result here. 

“It may be that they’re just trying to set the stage for future anti-democratic behavior to deny any election that they lost.”

Incompetent voter case fuels suspicion

One of the factors driving the activists is that they have found at least one case of an improper vote being cast in 2020 — although a closer look at the circumstances in that case points to administrative error, not a sinister scheme to steal the election.

The case involves Sandra Klitzke, a resident of the Brewster Village nursing home in Outagamie County, who had voted in the November 2020 and April 2021 elections, even though a court had removed her right to vote in February 2020.

On March 31, the Thomas More Society filed a WEC complaint on behalf of Klitzke and her daughter, Lisa Goodwin, who stated she “could not explain why the WisVote voting records would have indicated that my mother voted” in the 2020 or 2021 elections. A third-party law firm investigated and dismissed the complaint on technical grounds in May.

Normally the county register in probate mails notification of an ineligible voter to the WEC, according to Jennifer Moeller, president of the Wisconsin Register in Probate Association. The WEC then updates its information and notifies the local clerk, who is the only official authorized in Wisconsin to deactivate a voter’s registration.

It’s unclear why Klitzke’s name was not switched to “ineligible” in the WEC voter file. Both the WEC and Outagamie County officials said court records related to Klitzke’s guardianship information are confidential under state law.

System breakdown?

Town of Grand Chute Clerk Kayla Filen, who was not clerk at the time, confirmed her office did not deactivate Klitzke’s registration until April 2022.

Klitzke had been registered as an indefinitely confined voter dating back to 2007 and had voted as recently as 2017 before the 2020 election, Filen said. She was also listed as indefinitely confined in 2020. Indefinitely confined voters automatically receive absentee ballots without having to request them, Filen said.

A Wisconsin Watch review of Klitzke’s absentee ballot envelopes from 2020 and 2021 show them both signed in a shaky hand. In the 2020 election — when the WEC suspended the state’s special voting deputy program in nursing homes because of the pandemic — an employee at the county-owned facility had signed as a witness. 

In 2021, two witnesses from the town of Grand Chute signed the envelope, reflecting the normal process of special voting deputies witnessing nursing home voting.

Outagamie County Executive Tom Nelson, a Democrat, said the case feels “manufactured.” 

“They probably had to search high and low to find one case, we all know that there’s a lot of money, there’s a lot of horsepower behind this and for whatever reason, they’re targeting Outagamie County,” Nelson said in an interview. “And I stand by the county clerk, and I stand by the Brewster Village administrator completely and fully.”

Activist undeterred

Heuer said there are more cases out there as “many” people have come forward with stories of loved ones with cognitive disabilities voting.

His group has filed public records lawsuits in Brown, Crawford, Juneau, Kenosha, Lafayette, Langlade, Marquette, Ozaukee, Polk, Taylor, Vernon, Vilas and Walworth counties to obtain the names and addresses of everyone under guardianship. A Juneau County judge ruled against the Wisconsin Voter Alliance on Aug. 24 but the other cases are pending. 

Disability Rights Wisconsin opposes the release of the names and lobbied WEC to shield the names of incompetent ineligible voters in the public voting file, said Barbara Beckert, Disability Rights Wisconsin’s external advocacy director. 

“A lot of the communication related to this issue over the past year or so while all these different investigations have been going on has been confusing and at best misleading and sometimes very clearly inaccurate,” Beckert said. “Our experience has been that often people under guardianship aren’t certain whether or not they have the right to vote.”

The group has successfully helped restore some people’s voting rights, for example, someone who was deemed incompetent to vote at age 18 because of a developmental or cognitive disability, but is older now and no longer under the guardianship of a parent.

During the pandemic, Beckert said her organization reminded nursing homes across the state that Medicare and Medicaid guidelines require them “to affirmatively support the right of residents to vote.”

“Why aren’t we concerned about the vast majority of people who live in these facilities who have the right to vote and who might not be able to exercise it?” Beckert asked.

The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

In search for illegal Wisconsin votes, activists uncover gaps — but no plot is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.