Wisconsin Elections Commission approves administrative rule for observers

by Henry Redman, Wisconsin Examiner
September 11, 2024

The Wisconsin Elections Commission on Wednesday approved the final text on a permanent administrative rule guiding the conduct of election observers at polling places in the state. After two years of work and multiple rounds of public comment, the rule will now be sent to Gov. Tony Evers who can decide to send it to a legislative committee for final approval. 

While this is the first permanent rule approved by the commission since the agency’s creation in 2016, the rule won’t be in effect for the election in November. 

The administrative rule guides how election observers are allowed to act in a polling place, where they are allowed to stand and how close to certain activities they’re allowed to be. The rule also lays out how observers can challenge certain activities they witness; when and how election officials can remove observers from the polling place; and what members of the news media are allowed to do, including taking pictures or video inside polling places. 

The rule was approved 5-1. Republican commissioner Robert Spindell cast the only no vote after a number of speakers during the meeting’s public comment period objected to some of the rule’s provisions and questioned if it would be approved by the Republicans who control the Legislature’s Joint Committee on the Review of Administrative Rules (JCRAR). 

“We need to make sure that this thing is acceptable and get through the Legislature,” Spindell said. “I think at this point in time, it’s my opinion that if we put forth this rule right now, it’s not going to make it.” 

But Commissioner Don Millis, also a Republican, warned about “letting perfect be the enemy of good,” especially on a body like the elections commission, in which any action requires a bipartisan compromise due to the need for a four-vote majority and the body’s three-three partisan divide. 

“What frustrates me is … oftentimes the perfect becomes the enemy of the good,” Millis said. “I would like to see some of the changes that were talked about, but we’ve debated that, and if I could, if it were up to me, I would make many of those changes. If I could do it by fiat, I would do it, but we have a commission that has six votes, and it was necessary for every aspect of this rule to get four votes. Politics is the art of the possible. So what you try to do is you try to get done what you can.” 

Democratic Commissioner Ann Jacobs said the rulemaking process included an advisory committee that drew input from a wide array of political perspectives, but it was time to move forward. 

“Eventually you have to stop,” she said. “We can fiddle and fiddle and fiddle and the only thing that we wind up with is nothing.” 

After the vote, Spindell said he regretted having to vote no, but after the commission briefly celebrated the staff and work required to pass an administrative rule, Democratic Commissioner Mark Thomsen said if he really regretted the no vote, “then you have the guts and you vote it.” 

With the approved rule not taking effect until after November, the commission debated the creation of a “pocket guide” for election officials and observers that outlines expectations for how observers should behave at a polling place, when officials should remove observers or get law enforcement involved, and what the penalties for election interference are. 

Spindell objected to including those penalties, arguing that telling observers they’re subject to fines and imprisonment if they interfere with someone voting might discourage people from observing. 

“I can’t tell you how terrible I think this is in terms of the observers,” he said. “It’s trying to discourage observers, and what will happen when this thing gets out, it’ll be published, and they’ll start putting that in there. If you’re an observer, you’re going to get put in jail for six months and $1,000 fine and all this stuff. So I think it needs to be completely, you know, completely revised.” 

Other commissioners questioned how simply being made aware of what the law already is would be discouraging. Jacobs noted that election observing has become more common in recent years, with outbursts becoming more regular. Earlier this year in a Democratic special election primary, right-wing election conspiracy theorists disrupted voting at multiple polling places in Glendale, Jacobs pointed out. 

“If people are like, ‘I don’t like the existing rules,’ well, that’s fine, they can make a petition about that,” she said. “But the thing is, what we’re writing down is you don’t have the right to disturb an election site. And if the chief inspector tells you, you know, I’m denying your challenge and you need to go and return to your observing, and they refuse, yeah, the chief has the right to remove them. That’s already the law. If people are worried about that, then they have to think about their own behavior.” 

November preparations 

Outside of the rulemaking processes, the commission took action on a number of issues to get ready for the presidential election in November. WEC Administrator Meagan Wolfe presented a report detailing the preparations by the agency and local election clerks across the state. 

“There is a tremendous amount of work that goes into preparing for a presidential election, work that spans the totality of the last four years,” Wolfe said. “Election officials have worked tirelessly to prepare for this election, and this report is meant to be an open window to those preparations. I feel confident the WEC and local election officials put in the work to ensure that we are ready. Well-run elections do not happen by chance. They are the result of intentional preparations.” 

The commission also approved sending municipal election clerks updated documents for the manuals clerks use to answer questions that may arise on Election Day.

They spent much of that discussion on a clarification about military voters. 

Active duty military members with a permanent residence in Wisconsin but stationed elsewhere in the country or around the world can cast absentee ballots in Wisconsin and are eligible for exemptions to a number of requirements that other voters are subject to. These voters don’t need to register to vote and don’t need to provide a photo ID to obtain an absentee ballot. 

But, sometimes active duty military members might be at home on leave on Election Day and show up to the polls to vote. That can cause confusion for clerks, because in this instance the person is not technically a “military voter” and  would need to register to vote and follow normal procedures. 

“Clarifying that military electors must always be absentee electors is important to eliminate confusion at the polls on Election Day,” the communication to clerks states. “Simply put, if an elector is registering to vote in-person on Election Day at their polling place, they do not meet the definition of a military elector because they are not voting via absentee ballot. While they may meet the service definition of a military elector, Wisconsin law is clear that military voters must be voting absentee in order to be exempt from voter registration and proof of residence requirements.” 

The commission voted 5-1, with Spindell the only no vote, to approve the changes to the Election Day manuals. 

The commission also discussed and approved recommendations to clerks for emergency Election Day plans. Municipalities are encouraged to have approved these plans more than 30 days before the election and designate alternate polling locations if, for example, a polling place can’t be used because of a fire, gas leak or other type of emergency. 

Recommendations for clerks also include how they should alert voters to that change, with commissioners discussing which officials are qualified to wait at the initial polling site and redirect voters who show up, debating the use of the term “proper person” and if that should be expanded to include police and fire personnel or other types of officials such as gas and utility workers. 

“It seemed to me that a proper person would also include law enforcement and could also include emergency personnel,” Jacobs said. “You can think of a situation where it is dangerous for a lay person to be out, directing people, and you’d want to either have the emergency personnel, like the bridge is going to fall in, go somewhere else, or a police officer doing that same function.” 

The commission also discussed a voter registration and outreach campaign the agency’s staff is working on with an outside advertising agency. Under the state’s agreement with a nationwide organization that tracks when voters move to or die in other states, Wisconsin is required to send a postcard to voters in the state who are eligible but not registered to vote and provide information for how to do so. 

This year, the commission got an exemption from that rule and is instead running this campaign. Millis noted that whatever the final campaign looks like, the commission needs to head off any potential political blowback by being able to prove it wasn’t targeted at any specific portion of the state. 

“I think we should try to do whatever we can to make sure that we’re pinging phones and digital devices as much in, you know, Marinette and Black River Falls as we are in Madison and Milwaukee… I think that would be hugely important for the credibility of this,” Millis said. “And I think that when the analytics come back, I think it’d be useful for us, because we’re going to certainly get questions from the public and from legislators saying, well, this is just a get out the vote scheme for Madison and Milwaukee. And I don’t believe that’s what it is, but I don’t want the program to be susceptible to that complaint.”

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