STATE OF WISCONSIN
DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
PROPOSED ORDER ADOPTING PERMANENT RULE CR-16-040
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 s. Trans 102.15(3)(d), (5)(a), and (5m)(b) 1., 2. and 3., and (c); and to create s. Trans 102.15(3)(c), (d)2., (5)(d), (5m)(f), (g) and (h), 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:
The Department has been operating under an emergency rule affecting ch. Trans 102 since May 13, 2016 (Scope Statement 026-16). This permanent rule describes with greater particularity the processes employed by the department under the emergency rule and is intended to continue practices commenced under the emergency rule. This rulemaking establishes the information required as proof of name and date of birth or proof of U.S. citizenship, when other proof is not available and cannot be obtained without payment of a government fee, or cannot be obtained through reasonable effort, following commencement of the existing petition process and within a specific time thereafter. This rule 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.
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 102.15. 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.
Section 1 authorizes the DMV administrator to recognize name changes accomplished under Wisconsin common law or to overcome an erroneous name or spelling error on a supporting document if the applicant provides evidence of that change or correction, and requires the identification card be marked as noncompliant with federal REAL-ID requirements and is not intended to be accepted for federal identification, as provided in federal regulation.
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 if the applicant’s seriously held religious convictions do not allow him to provide a social security number to the Department or 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, 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 notices to the applicant that the birth information was not verified and requesting the applicant contact the Department to discuss the petition, to assist the Department with the discovery of correct birth information or secondary documentation sufficient to verify the applicant’s name, date of birth or U.S. citizenship.
• Requires a telephone call to the applicant, 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 respond 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 the applicant to contact the Department to discuss the petition, and notifying the applicant that no identification card receipts will be issued to him or her after 180 days if the applicant does not contact the Department within that time.
• Requires the written denial of an application if it remains suspended for 180 days without the applicant contacting the Department to discuss the petition.
• 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.
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 Requires suspension of an investigation if the DMV administrator determines the application is fraudulent, requires written notice to the applicant of the suspension and the reasons for the suspension, and requires the referral to law enforcement of any suspected fraud submitted in an application or during an investigation into a petition application. This section requires the Department to resume an investigation on a petition that was suspended or denied due to an applicant’s failure to contact the Department, and the immediate issuance of an identification card receipt, if the applicant contacts the Department to discuss the petition. This section 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 or other corroborating evidence.
Section 11 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 to any applicant for an identification card free of charge for voting purposes who makes a qualified petition 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. However, this section also requires the Department to issue a receipt within 24 hours of a petition filed within 7 days before or 2 days after a statewide election, and to deliver that receipt by overnight or next-day mail.
• Requires the Department to continue to reissue identification card receipts until the occurrence of a specified actions, including any action that justifies cancellation of an identification card, the applicant’s failure to timely contact the Department, a receipt returned as non-deliverable, or the Department’s determination that the applicant is not eligible for an identification card. The rule requires the Department to take a photograph of the applicant prior to reissuing an identification card receipt if the applicant’s photograph on file with the Department is 8 or more years old.
• 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.
• Establishes provisions for cancellation or refusal to issue a receipt and for the issuance of a replacement.