Robert Yablon on 2024 Ballot Measures About Election Policy

Frederica Freyberg:
Early voting is underway for the spring election in Wisconsin. Locally, ballots will include races like school board, county board and circuit court judges. The statewide ballot has voters weighing in on their preference for presidential candidates. It also has two questions asking voters if they want to amend the state constitution. The first question relates to the use of private funds in election administration. Shall a section of the constitution be created to provide that private donations and grants may not be applied for, accepted, expended or used in connection with the conduct of any primary election or referendum? The second question relates to election officials. Shall a section of the constitution be created to provide that only election officials designated by law may perform tasks in the conduct of primaries, elections and referendums? Both questions began as GOP legislation but were vetoed by the governor. Republicans then passed them as statewide ballot referenda, asking voters to decide directly. To help us understand these questions, we turn to UW Law School Professor Robert Yablon. Thanks very much for being here.

Robert Yablon:
Good to be with you.

Frederica Freyberg:
The first question hearkens back to the use of so-called “Zuckerbucks,” funding from the owner of Facebook that went to more than 200 cities and counties in Wisconsin to run elections during the pandemic. A “yes” vote would prohibit that. Was that private funding found to be illegal or politically biased?

Robert Yablon:
So the short answer is no. There were some legal challenges raised back in 2022 that funding and they were rejected by both the Wisconsin Elections Commission and by courts. It was found that those funds did not violate state law. There were allegations made of partisan bias with respect to how those funds were distributed, and the bulk of those funds did go to the state’s largest cities, which are democratic strongholds. People who defend those funds will respond and say, well, it’s natural that those would be the places that got the most funding. They have the most people and they had the greatest need in 2020 and over 200 municipalities throughout the state did get some of that money. There have been no studies that have indicated that any of these funds tilted the results of the election in Wisconsin.

Frederica Freyberg:
Are Wisconsin elections underfunded to the extent that private funding is needed?

Robert Yablon:
Chronic underfunding of elections has been an issue throughout the country. There are election officials, both Republican and Democrat around the country who have been asking for more funds for things like new equipment, more security measures and so on. So that’s a constant issue. 2020 was particularly distinctive because of the pandemic. And election officials in Wisconsin and elsewhere really found themselves with unique demands that they faced and they were often short on the funds and personnel that they needed to fulfill their responsibilities. And that’s where you had the private interventions in 2020. That’s not something that we’ve had a lot of in the past but private organizations saw that there really was this shortfall and folks stepped up.

Frederica Freyberg:
So question number two on the ballot is asking whether to prohibit anyone other than an election official designated by law from election administration. This has to do, it’s my understanding, with a consultant in Green Bay who advised officials on how to make their election run more smoothly, again, in 2020 during the pandemic. Apart from outside consultants, what kind of election officials not designated by law, however, help run elections?

Robert Yablon:
Yeah, I mean, that’s a great question. And there is some ambiguity about the scope of this provision and exactly what it would prohibit. There’s some question about whether it would even prohibit what some of the proponents seem to want to stop, which is the use of this sort of election consultants that generated controversy in Green Bay in 2020. But there are often people that are not election officials that do work that is in some way connected to helping facilitate an election. There are folks who are not election officials who will help the poll workers set up the polling place in the morning and questions may arise whether they can do that. Sometimes a machine might break down and questions might now arise if this passes about whether the election official can call that outside vendor and ask for troubleshooting assistance. Could they call upon an expert in ballot design to make sure that they’re fitting everything on the page in a sensible way. So those are the worries that opponents of this will bring up, that it creates uncertainty, possibly unintended consequences, and if it is interpreted broadly, could make the job of election officials more difficult.

Frederica Freyberg:
Meanwhile, would amendment number two change existing law?

Robert Yablon:
That’s also a question. Wisconsin has a statute right now that says only election officials may conduct an election. And in 2020, that provision was interpreted actually not to prevent the use of expert outside consultants. So it may be that the amendment does very little, right? A narrow interpretation of the amendment would say it’s just tracking the law that we have but because of the fact that you have arguably ambiguous terms here. What is a task? What is conduct of an election? That opens the door, at least, to some arguments that it needs to have a broader interpretation.

Frederica Freyberg:
What do legal experts think of seeking to enact constitutional amendments as opposed to passing legislative bills into statute?

Robert Yablon:
Right. Well, so there are a lot of states since 2020 that have restricted private election funding. It’s been a bit of a political issue throughout the country. For the most part, that has happened through statutes, not through constitutional change. And so some of the critics of this amendment say this just doesn’t rise to the level of a matter that needs to — that you need a constitutional amendment for. The constitution is the state’s fundamental law. It sets the framework for our government. It protects our fundamental rights. Is this really the sort of thing that we need to enshrine into the constitution rather than try to work out through the political process, ideally through something like a bipartisan compromise?

Frederica Freyberg:
Robert Yablon, thanks very much.

Robert Yablon:
Good to be with you.