Wisconsin election officials get some clarity on tasks they can outsource

by Alexander Shur / Votebeat, Wisconsin Watch
June 28, 2024

Wisconsin election officials welcomed a clarification from the state attorney general this week on the scope of a constitutional amendment limiting who can conduct elections. But some local clerks and legal experts aren’t convinced that it’s enough to curb confusion over the measure or the risk of disruptive lawsuits.

The short text of the amendment states, “No individual other than an election official designated by law may perform any task in the conduct of any primary, election, or referendum.”

The opinion from Attorney General Josh Kaul, a Democrat, held that clerks can continue working with private vendors on tasks like ballot design despite a conservative group suggesting — and clerks fearing — otherwise. 

The amendment “does not apply to more ordinary circumstances in which an election official works with or is assisted by non-election officials in ensuring the proper administration of an election,” Kaul said.

He added that clerks can continue working with non-election officials to print ballots and enhance cybersecurity and can use law enforcement personnel to transfer ballots. 

In sum, the opinion appears to reveal Kaul’s view that the amendment doesn’t require changing most clerks’ election practices at all. The opinion could provide Wisconsin election officials with some of the assurance they’ve been searching for since the amendment passed in April. 

“The opinion confirms that the amendment doesn't change how elections are conducted in Wisconsin,” said Mike Haas, Madison’s city attorney and the former administrator of the Wisconsin Elections Commission. 

Kaul is at this point the highest legal authority to weigh in on the issue, so his opinion goes a long way toward resolving uncertainty over the amendment’s meaning, Haas said.

But attorney general opinions aren’t binding on courts, and the opinion only carries so much legal weight. That has some election officials and legal experts concerned Kaul won’t have the last word.

“This opinion could be guidance, that's for sure, but I think it still leaves us open to complaints from potential constituents in each individual community,” Oconomowoc City Clerk Diane Coenen said. “And I think it still leaves it open to lawsuits … and nobody wants to be part of that.”

Emily Lau, a staff attorney with the State Democracy Research Initiative at the University of Wisconsin Law School, said groups that favor a broader interpretation of the amendment are likely looking for opportunities to sue over practices that Kaul says are OK but that they dispute.

After Wisconsin voters ratified the constitutional amendment by a 59%-41% margin, Dane County asked for an advisory opinion from Kaul, given the widespread confusion over its scope and effect. Additional guidance could come from the Wisconsin Elections Commission, but it’s unclear when that would come out, or whether it would differ from Kaul’s opinion. The state’s primary election is Aug. 13.

Among other things, Dane County asked Kaul to clarify that municipal and county IT officials and commercial printers manufacturing ballots don’t have to be election officials. Kaul’s opinion said exactly that. 

But he didn’t specifically address other questions clerks had, such as whether they could use non-election city staff to set up polling sites and private moving companies to transport voting machines and other equipment. His opinion appeared to suggest those practices would be OK, but the lack of explicit language allowing them concerned Coenen.

“I feel like I don't think this is going to make it any clearer for us,” she said.

Asked to clarify, Department of Justice spokesperson Gillian Drummond pointed to a portion of the opinion stating the measure doesn’t apply to the ordinary circumstances when clerks or their staff work with non-election officials. Haas said the practices Coenen raised are very likely allowed under Kaul’s interpretation.

“Obviously we got the 1,850 municipal clerks and 72 county clerks, and they can all have their own opinion,” Haas said. “It's not unreasonable to think that there may be a legal challenge. I mean, after all, this is Wisconsin. But I'm even more confident with the attorney general's opinion about what the outcome of that (challenge) would be.”

“I no longer see this as one of the top concerns that they need to be worried about heading into the fall,” he said.

Who designs ballots? A dispute looms

One group that could litigate over election practices that follow Kaul’s interpretation, Lau said, is the Honest Elections Project. During a public comment period, the conservative group sparked concern among clerks about how involved private vendors could be in ballot design.

Dozens of county clerks in Wisconsin work with outside vendors to design and program ballots to make sure they have the right candidates in the right order, though typically they approve the final design. Kaul said in his opinion that election officials could continue that practice, but the Honest Elections Project might object.

The Honest Elections Project has supported several election-related lawsuits around the nation, including efforts to purge Michigan voters from the voter rolls and push the independent legislature theory, a legal interpretation that would have gutted state courts’ power in cases regarding federal elections. The U.S. Supreme Court has rejected this theory.

Honest Elections Project executive director Jason Snead said in his public comment that election officials should oversee any decisions regarding ballot design and other tasks. 

Snead stated that under the amendment, only election officials can be charged with “any decisions” regarding ballot design, absentee ballot processing, polling place locations and other election tasks. 

It’s not clear whether Snead meant that election officials must design ballots in house, or just be the ones who sign off on vendors’ design proposals. Snead didn’t respond to multiple requests for comment. 

Some clerks told Votebeat, and stated in the public comments, that they thought Snead wanted them to design ballots without any outside assistance. Snead’s comment concerned clerks because they finalized their ballot design for the August election before Kaul issued his opinion. 

Douglas County Clerk Kaci Lundgren wrote in May that it would be “virtually impossible” to design ballots themselves. “I NEED my vendor to assist me in these tasks or there would be no way I could complete the ballot design in time to meet the requirements.”

In addition to Lundgren, election officials in 20 counties and municipalities submitted public comments saying they need to be able to work with outside vendors to design ballots.

One of them, Jackson County Clerk Cindy Altman, told Votebeat that with three years of experience, she’s unsure whether she would be able to design ballots on her own.

“As a new clerk, it would be impossible,” she said.

Whitney Quesenbery, executive director of the Center for Civic Design, which helps election officials with ballot designs and other tasks, agreed that ballot design would be a tough task for clerks to take on, given budget and staffing constraints. 

“No matter who has their hands on making ballots, it's election officials that have the final say on making sure the ballot is accurate, accountable and in compliance with state laws,” Quesenbery said.

Haas said higher courts have made clear that they don’t take kindly to post-election lawsuits challenging rules that were in place before an election. That could reduce the likelihood of success of any potential lawsuit challenging ballot design ahead of the coming election.

“If people have a problem with how that was done for the August election, it's probably too late to challenge that at this point, I would think,” Haas said. “If they're going to challenge who is printing ballots for the November election, I would think they would need to make that legal challenge in time for a court to make a decision, before the ballots have to be printed.”

Who can be designated as an election official?

Another apparent disagreement that played out during and ahead of the comment period regards who can be designated as an election official.

The constitutional amendment arose to address a situation in Green Bay in 2020, when the city’s election office hired a consultant from an outside nonprofit, using grants from the Center for Tech and Civic Life. The consultant, Michael Spitzer-Rubenstein of the National Vote at Home Institute, was particularly involved in planning, according to a city attorney’s report. That drew the ire of conservatives.

Amendment author Sen. Eric Wimberger, R-Green Bay, told Votebeat in March that if clerks are worried about outside workers or private entities completing tasks that could be construed as being covered by the amendment, they could just designate them as election officials.

But Snead called for a far more restrictive interpretation, saying, “If Dane County contemplates consultants, advisers, or other outside individuals or entities being eligible for ‘appointment’ and able to receive delegated administrative authority, HEP vehemently objects.”

He asked Kaul to emphasize the amendment’s “animating objective — to blunt the influence of … outside activists on the administration of elections in Wisconsin.”

Wimberger declined to comment for this story.

Kaul’s opinion didn’t explicitly resolve the differences between Wimberger’s and Snead’s interpretations, Haas said, but it stated that only election officials can direct and lead the administration of an election.

“I think that precludes just designating a consultant as an election official,” Haas said. “And I have not heard any inkling that Dane County has considered doing that, or Waukesha County, Washington County, or anybody else for that matter.”

Alexander Shur is a reporter for Votebeat based in Wisconsin. Contact Shur at [email protected].

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This article first appeared on Wisconsin Watch and is republished here under a Creative Commons license.