SS 038-15

Emergency Rule Authority

The agency is authorized to promulgate the rule as an emergency rule because it was previously directed to do so by the JCRAR pursuant to Wis. Stat. ss. 227.10 (1), 227.26 (2).

Further, Board staff believes that an emergency rule is necessary to preserve the public peace and welfare[3] by 1) properly implementing the Legislature’s enacted policy, and 2) remedying potential public confusion about the status of the Photo ID Law and how voters comply with it. Therefore, an emergency rule is necessary to preserving the public peace and welfare before the May 19, 2015 special elections.

Finally, on November 22, 2011, the G.A.B. submitted a Statement of Scope, substantially similar to this Statement, to the Governor. On December 2, 2011, the Governor approved that Statement. See Letter from Gov. Scott Walker to Director Kevin Kennedy (Dec. 2, 2011) (attached hereto as “Exhibit A”). Pursuant to Executive Order #50, Sec. II, Para. 9, an agency must file an approved statement of scope to the “Legislative Reference Bureau within “thirty calendar days of approval if the agency intends to proceed with rulemaking[.]” Given that the G.A.B. did not implement the emergency rule in 2011 due to the court-ordered stays, the Board now must submit a new Statement of Scope to the Governor for approval. This Statement of Scope describes the same objective as did the 2011 Statement, and the Board staff requests the Governor to make a similar approval now.

Permanent Rule

The agency plans to promulgate this rule as both an emergency rule and a permanent rule. This scope statement is submitted in support of both the emergency rule and the permanent rule.

5.   Estimate of the amount of time that state employees will spend developing the rule and of other resources necessary to develop the rule:

10 hours.

6.   List with description of all entities that may be affected by the proposed rule:

WTCS institutions desiring to issue student identification cards acceptable for voting purposes will be affected by this rule. All students at a WTCS institution also will be affected by this rule as well as Wisconsin’s 1,852 municipal clerks responsible for administering elections and approximately 25,000 poll workers who staff voting locations on Election Day. The impact of the rule will be on town, village and city government. The rule does not impact businesses, private economic sectors or public utility ratepayers.

7.   Summary and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule:

The 2002 federal Help America Vote Act (HAVA), 42 USC §15301 et seq., contains a provision requiring states to receive identification from individuals who register to vote for the first time, by mail. HAVA §303 (b)(2)(A)(i)(I). That requirement is a voter registration requirement and is a more general requirement than the state identification requirement for receiving a ballot. The federal requirement simply refers to “current and valid photo identification.” The federal requirement does not delineate specific types of photo identification as does the Wisconsin statute.

8.   Anticipated economic impact of implementing the rule (note if the rule is likely to have a significant economic impact on small businesses):

The rule will have minimal or no impact on the governmental entities impacted by the rule. Municipal clerks and poll workers will be provided with informational and training materials on the acceptable forms of identification for voting. This rule merely clarifies that WTCS student identification cards are an “unexpired identification card issued by a university or college in this state that is accredited, as defined in s. 39.90 (1)[.]” Wis. Stat. s. 5.02 (6m) (f). The rule will eliminate possible confusion if a voter offers a technical college student identification card when appearing at the polling place to vote. This rule will not have an impact on small businesses.

Contact person:   Matthew W. Giesfeldt

[e-mail], [phone]

1

Wis. Stat. s. 6.15 (2) (bm) provides that electors must provide “proof of identification” to apply to vote. “Identification” is defined to include “[a]n identification card issued by a university or college in this state that is accredited, as defined in s. 39.30(1)(d)[.]” Wis. Stat. s.5.02 (6m) (f). An accredited college is an “institution accredited by a nationally recognized accrediting agency . . . or, if not so accredited, is a nonprofit institution of higher education whose credits are accepted on transfer by not less than 3 institutions which are so accredited, on the same basis as if transferred from an institution so accredited.” Wis. Stat. §39.30(1)(d); see also Paragraph 3 of this Statement of Scope.

2

In 2011, the Board analyzed the Photo ID Law to determine that an unexpired WTCS student identification card met the statutory definition found in Wis. Stat. §5.02(6m)(f). The Board determined that WTCS institutions are accredited under Wis. Stat. §39.30(1)(d). In making this determination, the Board considered advice from G.A.B. staff regarding the accepted rules of statutory interpretation, starting with the plain language. The Board also considered G.A.B. staff information regarding the legislative history of the applicable statutes. In making its determination, the Board did not consider whether permitting the use of WTCS student identification cards was good public policy.

3

Wis. Stat. §227.24(1)(a) provides that “[a]n agency may promulgate a rule as an emergency rule without complying with the notice, hearing and publication requirements under this chapter if preservation of the public peace, health, safety or welfare necessitates putting the rule into effect prior to the time it would take effect if the agency complied with the procedures.”