Criminal justice advocates in Wisconsin argued in court Wednesday that Republicans supported it constitutional amendments to bail approved by voters last year should be invalidated due to procedural errors, a case that election officials and the Legislature call a cynical attempt to overturn the election results.
Dane County Circuit Judge Rhonda Lanford did not rule from the bench after arguments. She said she would make a written decision later.
The case centers on whether the Legislature sent ballot questions to the proper election officials and whether filing deadlines were met. If successful, the amendments could be removed from the state constitution and put up for another vote in the future.
One amendment allows judges to consider prior convictions for violent crimes when setting bail for someone accused of a violent crime. In another example, judges may consider a suspect’s risk to public safety, including his criminal history, when setting a bail amount necessary to release someone before trial.
Voters also approved an advisory referendum, which is unenforceable, requiring able-bodied, childless welfare recipients to look for work.
The judge last year rejected the attempt to stop the April 2023 vote on the three questions. She then ruled that those who filed the lawsuit could not prove that they would suffer “irreparable harm” if the measures did not appear on the ballot.
Jeff Mandell, an attorney for the criminal justice groups, argued Wednesday that the three measures were not properly presented to the people and should be annulled.
“We’re not saying these can never be part of the Constitution,” Mandell said. “All we’re saying is that those who run our elections must follow the law. People can vote on it again.”
Attorneys for the Legislative and State Elections Commission countered that the law was followed closely enough and that a “minor procedural error” should not result in the election results being overturned.
State law requires that ballot applications be submitted to the official or agency responsible for preparing ballots at least seventy days before the election. That made the deadline for the measures Jan. 25, 2023. The Legislature sent the measures to the Wisconsin Elections Commission on Jan. 19, 2023, but the commission did not submit the measures to county election officials until Jan. 26, 2023.
The groups that filed suit argued that county election officials are responsible for preparing the ballots, not the state commission, and therefore the Legislature filed the ballot questions in the wrong place.
The election commission countered that it was not mandatory for the Legislature to refer the questions to county election officials, and that there is no penalty for failing to do so. Commission attorney Charlotte Gibson also argued that the 70-day period is not mandatory.
“There is no evidence that voters — let alone a sufficient number of voters to change the election results — were misled into voting” for the resolutions because of the alleged procedural violation, the Legislature said in court filings.
The Legislature called the lawsuit a “meritless and cynically undemocratic attempt to overturn the results of the 2023 spring election in Wisconsin,” where the measures were “overwhelmingly” approved.
The constitutional amendments were approved with support of 67% and 68%, while 80% of voters approved the welfare resolution.
WISDOM, a statewide faith-based organizing group, and its affiliate, EXPO Wisconsin, which stands for Ex-Incarcerated People Organizing, filed the lawsuit. Both groups fight against mass incarceration and work with people who have spent time behind bars.
