STATE OF WISCONSIN
DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
PROPOSED ORDER AMENDING EMERGENCY RULE EmR 1618
The Wisconsin Department of Transportation proposes an Order to amend Trans 102.15 (3) (d), (5) (a), and (5m (b) 1., 2. and 3., and (c); and to create Trans 102.15 (3) (c), (d) 2., (5) (d) and (6m) of the Wisconsin Administrative Code ch. Trans 102 relating to operator’s licenses and identification cards. The Statement of Scope for this rule, SS 026-16, was approved by the Governor on April 18, 2016, and published in Wisconsin Administrative Register No. 724B, on April 25, 2016, and approved by the Secretary of the State of Wisconsin Department of Transportation (“Department”) Mark Gottlieb, P.E., on May 6, 2016.
The Department proposes an Order to amend Trans 102.15 (3) (d), (5) (a), and (5m) (b) 1., 2. and 3., and (c); and to create Trans 102.15 (3) (c), (d) 2., (5) (d) and (6m) of the Wisconsin Administrative Code, relating to operator’s licenses and identification cards.
Explanation of Statutory Authority: Sections 343.14 and 343.50 (4), Wis. Stats., specify the contents of applications for identification cards and authorize the Department to require such information as the Department considers appropriate to identify the applicant. Section 343.50, Wis. Stats., requires the Department to issue identification cards. Section 343.50 (5) (a) 3., Wis. Stats., prohibits the Department from charging a fee for an identification card requested by a qualified applicant who requests it for purposes of voting. Section 343.50 (1) (c), Wis. Stats., authorizes the Department to issue an identification card receipt as a temporary identification card while the Department processes the application. Section 343.02 (1), Wis. Stats., authorizes the Department to promulgate such rules concerning identification cards that the Secretary of the Department considers necessary. Section 85.16 (1), Wis. Stats., authorizes the Secretary of the Department to make rules deemed necessary to the discharge of the powers, duties and functions vested in the Department. Related Statutes and Rules: Section 343.50, Wis. Stats., requires the Department to issue identification cards.
Trans 102.15, Wis. Adm. Code (“Trans 102.15”), requires proof of identification for issuance, duplicate issuance, renewal, reissuance, or reinstatement of a driver license or identification card, and specifies the acceptable documentary proof. Trans 102.15 also establishes a petition process under which an applicant may request an exception to the documentary proof requirements for name and date of birth.
Plain Language Analysis
Background: In 2011, Wisconsin enacted a statute requiring voters to present photographic identification when voting, and listed identification cards issued by the Department’s Division of Motor Vehicles (“DMV”) among the types of acceptable photographic identification. The statute also prohibited DMV from charging a fee to an individual applying for the initial issuance, renewal, duplicate issuance, or reinstatement of an identification card if the individual is a U.S. citizen who will be at least 18 years of age on the date of the next election and he or she requests that the identification card be provided without charge for purposes of voting.
DMV amended its administrative rules in 2014 to establish a petition process by which an applicant could present extraordinary proof to document his or her name, date of birth and U.S. citizenship, which DMV verifies through the Wisconsin Department of Health Services or other states or units of government as needed, thereby eliminating the applicant’s responsibility to pay government fees for supporting documents. Specifically, Trans 102.15 (5m) permits an individual who applies for an identification card without charge for purposes of voting to make a written petition to the DMV administrator for an exception to the requirements set forth in Trans 102.15 (3) (a) if the individual is unable to provide the required documents and the documents are unavailable to the individual. If the initial petition process set forth in Trans 102.15 (5m) (b) is unsuccessful in verifying an applicant’s name, date of birth and U.S. citizenship, the Department may issue an identification card if it receives other secondary documentation that is deemed acceptable to the DMV administrator to prove name, date of birth and U.S. citizenship.
Since the implementation of the extraordinary proof petition process, DMV has developed best practices, identified appropriate timelines and standards for action, and identified common-sense steps that must be followed in the application and petition process to ensure consistency in the processing of applications. This rule sets forth these best practices, timelines, standards and common-sense steps. In addition, this rule includes provisions that result in a more specific process and deadlines to verify an applicant’s name, date of birth and U.S. citizenship, thereby limiting the DMV administrator’s discretion by establishing and requiring a consistent application of standards and criteria throughout the petition process.
Rule Content: This rule adopts Wisconsin common law and requires the DMV administrator to approve a name change for an identification card if the common law requirements are met and the applicant submits an affidavit to that effect. This rule change also clarifies the steps taken by the Department during the petition process for a no-fee identification card for voting purposes, including issuing receipt documentation for use as a temporary identification card usable for voting purposes by an applicant during the petition process described in Trans 102. This rule change also adds specific criteria, standards and procedures for the extraordinary proof petition process, thus setting forth mandatory duties of DMV’s administrator and limiting the DMV administrator’s discretion during the petition process.
The statement of scope published for this rule included notice of the Department’s intent to promulgate a permanent rule on this subject. The Department intends the permanent rule to be substantially similar to this emergency rule.
Section 1 authorizes the DMV administrator to recognize name changes accomplished under Wisconsin common law if the applicant provides evidence of that change.
Section 2 reorganizes existing name change provisions to make room for a mandatory common law name change approval described in Section 3 below.
Section 3 requires the DMV administrator to approve a name change if the applicant for an identification card provides an affidavit declaring all evidence required to prove a name change under Wisconsin’s common law.
Section 4 exempts a qualified applicant for an identification card requested without charge for voting purposes from the requirement to provide a social security number, by allowing the use of a number issued by the Department in lieu of a social security number.
Section 5 requires any person issued an identification card without charge for voting purposes without providing a social security number to provide a social security number on any subsequent application for an instruction permit or operator’s license.
Section 6 requires the Department to provide a translator to applicants who cannot read or understand notices relating to the petition process, substitutes “applicant” for “person” to achieve consistency in terms, and corrects capitalization errors.
Section 7 requires petitions to be processed at DMV’s central office in Madison, and the creation of a written file documenting all activity and communications concerning the application processing. The section also corrects capitalization errors.
Section 8 details the petition process and does all of the following:
• Requires two successive written requests to the applicant to provide additional information that is reasonably likely to lead the Department to the discovery of correct birth information or secondary documentation required to verify the applicant’s name, date of birth or U.S. citizenship.
• Requires a telephone call to the applicant to request the applicant provide additional information, if the telephone number is known and the applicant failed to respond to the two prior letters.
• Requires the Department to suspend its investigation into a petition if the applicant fails to provide additional information in a timely manner, after two successive letters and telephone call. The rule requires the Department to send detailed written notice of the suspension to the applicant, requesting additional information, and notifying the applicant that no identification card receipts will be issued to him or her after 180 days if no additional information is provided within that time.
• Requires the written denial of an application if it remains suspended for 180 days without the applicant providing any additional information.
• Requires suspension of an investigation if the administrator or specified DMV managers determine the application is fraudulent, requires written notice to the applicant of the suspension and the reasons for the suspension, and requires the Department to refer the suspected fraud to law enforcement.
• Requires the resumption of an investigation, regardless of any prior suspensions or denial, and the immediate issuance of an identification card receipt if the applicant provides additional information that is reasonably likely to lead the Department to the discovery of correct birth information or secondary documentation.
• Requires the applicant to act in good faith and use reasonable efforts to provide information to assist the Department in locating and obtaining correct birth information or secondary documentation.
• Requires DMV to use reasonable efforts, promptly and with due diligence, to locate and obtain additional documentation by following leads provided by the applicant.
• Establishes the qualifications of those who research leads provided by the applicant.
• Requires DMV to pay fees required by the record custodian for secondary documentation.
• Requires the administrator to approve a petition whenever he or she is satisfied that the applicant’s name, date of birth and U.S. citizenship is, more likely than not, correct based on secondary documents and other corroborating evidence.
Section 9 specifies those subordinates to whom the DMV administrator may delegate authority to accept or reject secondary proof of the applicant’s name, date of birth or U.S. citizenship.
Section 10 creates a temporary identification card receipt usable for voting purposes while the identification card application is being processed, and does all of the following:
• Requires the issuance of an identification card receipt pursuant to s. 343.50 (1) (c), Stats., to any qualified applicant for an identification card free of charge for voting purposes who makes a petition under Trans 102.15 (5m) that cannot be resolved within 5 working days. The Department must mail the receipt to the applicant no later than the sixth business day after he or she submitted the petition, which delay will permit DMV time to complete processing the majority of petitions in the existing process set forth in Trans 102.15 (5m) without having to issue a receipt pursuant to this rule. • Establishes the required contents of the receipt, which shall include a clear mark stating “FOR VOTING PURPOSES ONLY”. The receipt shall also include other information required on driver licenses and identification cards by ss. 343.17 (3) and 343.50 (4g), Stats.