2. Statutory Authority:
3. Explanation of Agency Authority:
Wisconsin Statutes § 5.05(1) states: General Authority. The elections commission shall have the responsibility for the administration of chs. 5 to 10 and 12 and other laws relating to elections and election campaigns, other than laws relating to campaign financing… Specifically, Wis. Stat. § 5.05(1)(f) also provides that the Commission may “Promulgate rules under ch. 227 applicable to all jurisdictions for the purpose of interpreting or implementing the laws regulating the conduct of elections or election campaigns, other than laws regulating campaign financing, or ensuring their proper administration.” 4. Related Statutes or Rules:
This proposed rule is sought as a temporary, emergency addition to Chapter EL 6 of the Wisconsin Administrative Code (EL § 6.07). It adheres to the provisions found in Wis. Stat. § 6.875(6)(e), and accounts for the temporary visitation restrictions that will prevent the in-person presence of SVD and observers in care facilities. 5. Brief Summary of the Proposed Rule:
The proposed rule would authorize clerks to attempt proper notice and site visits for SVD voting activity at care facilities in strict accordance with Wis. Stat. § 6.875 if feasible, or otherwise maintain compliance with Wis. Stat. § 6.875(6)(e) if in-person site visits are prohibited, by authorizing in-person or electronic attempts to conduct/arrange site visits. If facility administrators rebuff such attempts on two occasions, clerks will have properly adhered to the first component of Wis. Stat. § 6.875(6)(e) (residents will be deemed unable to vote during two, actual/attempted site visits by SVDs), and the clerks or executive director of a board of election commissioners may proceed with the second component of Wis. Stat. § 6.875(6)(e) (the mailing of an absentee ballot to qualified electors). 6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
There are no existing or proposed federal statutes or regulations that address the topic of this proposed rule. There also exists no uniformity in the manner in which the laws in each of the fifty states address the need to provide this service to care facility residents, although some state have enacted similar laws to those of certain counterparts. However, the United States Department of Health and Human Services, Centers for Medicare and Medicaid Services, has provided:
The Centers for Medicare & Medicaid Services (“CMS”) is affirming the continued right of nursing home residents to exercise their right to vote. While the COVID-19 Public Health Emergency has resulted in limitations for visitors to enter the facility to assist residents, nursing homes must still ensure residents are able to exercise their Constitutional right to vote. States, localities, and nursing home owners and administrators are encouraged to collaborate to ensure a resident’s right to vote is not impeded.
That said, the CMS, other federal/state/local health officials, and public/private care facility administrators/owners have all continued to affirm the requirements of visitor restrictions. However, it should be noted that CMS guidance only pertains to specific types of facilities accepting federal funding. Other facilities, particularly those which are privately owned, retain a great deal of control over access and visitation. These restrictions, and the overall lack of uniformity, necessitated the emergency administrative rule request directed by the Commission and put forth herein.
7. If Held, Summary of Comments Received During Preliminary Comment Period and at Public Hearing on the Statement of Scope:
N/A
8. Comparison with Rules in Adjacent States:
Each state administers voting in care facilities in a unique manner. Special Voting Deputies, and the laws that govern that process, are unique to the state of Wisconsin. Other states, including Indiana and Arizona, made changes to their processes for voting in care facilities in 2020 to account for restrictions on visitors because of COVID-19. In Indiana, the process was modified to allow care facility staff to administer voting, something currently prohibited under Wisconsin law. Other states facilitate voting in care facilities by either mailing ballots or using mobile polling places where the voting administrators do not enter the care facility.
9. Summary of Factual Data and Analytical Methodologies:
The Commission proposes this rule will ease financial and logistical burdens on various parties, and avoid the possible disenfranchisement of voters, by formally acknowledging and counteracting the effects of COVID-19 visitation restrictions for SVDs. The timing of statutory clerk start dates, notice and visitation requirements, and postal delivery estimates combine to create a high likelihood that many voters will be disenfranchised if the Commission does not provide this guidance to clerks. This reasoning is supported by the Commission’s formal assessment and directive, Commission staff’s coordination with a variety of local/state/federal government officials, care facilities assessments, Clerk input and public comment, and other due diligence that has been performed to date. According to the Disability Vote Coalition, Wisconsin has more than 87,000 beds in facilities that may be covered by SVD voting, including more than 28,000 in nursing homes, 34,000 in community-based residential facilities, 8,000 in adult family homes, and 16,000 in residential care apartment complexes.
10. Analysis and Supporting Documents Used to Determine Effect on Small Businesses or in Preparation of an Economic Impact Analysis:
There would be no economic impact on small businesses.
11. Effect on Small Business:
The effect of the proposed emergency rule, and subsequent processes, will have little to no impact on small businesses. If an impact exists, it would likely result in a net positive for small business. Care facility staff, resources, and budgets will be less strained if they do not have to facilitate the physical visits required for SVD voting processes on at least two occasions, including the potential purchase of additional personal protective equipment and other associated equipment and supplies. No administrative or financial burden on small businesses is anticipated. The proposed emergency rule also minimizes potential COVID-19 exposure to the many at-risk populations that live and vote in care facilities.
Municipal clerk outreach and comment has also highlighted that these officials believe that proceeding with a futile attempt to conduct in-person SVD site visits, and the associated pre-planning, will only result in an unnecessary drain on local resources and budgets, which are directly tied to Wisconsin taxpayers. Essentially, the current process, without the enactment of this emergency administrative rule, will prompt clerks to commit time, personnel, and budget to processes that represent an impossibility of completion.
12. Estimate of the Amount of Time Agency Employees Will Spend Developing the Proposed Rule and of Other Resources Needed to Develop the Rule:
WEC staff estimates that it will take approximately 40 staff hours to draft a scope statement and carry out the subsequent steps to promulgate an administrative rule.
13. Agency Contact Person:
Jim Witecha, Staff Attorney
14. Place Where Comments are to Be Submitted and Deadline for Submission:
The deadline for submitting comments will be the start time/date of the public hearing stated in the Notice of Hearing. (See Wis. Stat. § 227.136). Submit comment(s) to: Mailing Address:
Wisconsin Elections Commission
Attention: Jim Witecha
212 East Washington Avenue, Third Floor
P.O. Box 7984
Madison, WI 53707-7984
Direct:
Jim Witecha
