STATE OF WISCONSIN
DEPARTMENT OF TRANSPORTATION
OFFICE OF THE SECRETARY
PROPOSED ORDER AMENDING EMERGENCY RULE EmR 16----
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 107-16, was approved by the Governor on November 9, 2016, and published in Wisconsin Administrative Register No. 731A2, on November 14, 2016, and approved by the Secretary of the State of Wisconsin Department of Transportation (“Department”) Mark Gottlieb, P.E., on November 29, 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.
ANALYSIS
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: This emergency rulemaking is necessary to preserve the public welfare by ensuring that those who cannot obtain acceptable photographic identification for voting purposes with reasonable effort will be able to obtain photographic identification before the next scheduled statewide elections in February 2017 and April 2017. An existing emergency rule, EmR 1618, also relates to Operator’s Licenses and Identification Cards; however, EmR 1618 expires on December 8, 2016. Given the legislative session schedule, it is not possible to complete the full rulemaking process for the permanent rule.
This rulemaking will consider the information required as proof of name and date of birth or proof of 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 a specific time thereafter.
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.
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.
