SUFFRAGE
III,1Electors. Section 1. [Amended Nov. 1882, Nov. 1908, and Nov. 1934; repealed April 1986; as created April 1986] Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district. [1881 J.R. 26 A, 1882 J.R. 5, 1882 c. 272, vote Nov. 1882; 1905 J.R. 15, 1907 J.R. 25, 1907 c. 661, vote Nov. 1908; 1931 J.R. 91, 1933 J.R. 76, vote Nov. 1934; 1983 J.R. 30, 1985 J.R. 14, vote April 1986] It is clearly within the legislature’s province to require any person offering to vote to furnish such proof as it deems requisite that he or she is a qualified elector. Requiring a potential voter to identify himself or herself as a qualified elector through acceptable photo identification does not impose an elector qualification in addition to those set out in this section. League of Women Voters of Wisconsin Education Network, Inc. v. Walker, 2014 WI 97, 357 Wis. 2d 360, 851 N.W.2d 302, 12-0584. The legislature can amend the current election statutes, without referendum, so as to make the statutes conform with the 26th amendment to the U.S. Constitution. 61 Atty. Gen. 89. A proposal to amend a statute to allow nonresident property owners to vote on metropolitan sewerage district bonds, in addition to electors, probably would require the proposal to be submitted to a vote of the electorate under sec. 1. 63 Atty. Gen. 391.
Constitutional law: residency requirements. 53 MLR 439.
III,2Implementation. Section 2. [Repealed April 1986; as created April 1986] Laws may be enacted: III,2(2)(2) Providing for registration of electors. III,2(3)(3) Providing for absentee voting. III,2(4)(4) Excluding from the right of suffrage persons: III,2(4)(a)(a) Convicted of a felony, unless restored to civil rights. III,2(4)(b)(b) Adjudged by a court to be incompetent or partially incompetent, unless the judgment specifies that the person is capable of understanding the objective of the elective process or the judgment is set aside. III,2(5)(5) Subject to ratification by the people at a general election, extending the right of suffrage to additional classes. [1983 J.R. 30, 1985 J.R. 14, vote April 1986] The requirement to present acceptable photo identification comes within the legislature’s authority to enact laws providing for the registration of electors under this section because acceptable photo identification is the mode by which election officials verify that a potential voter is the elector listed on the registration list. League of Women Voters of Wisconsin Education Network, Inc. v. Walker, 2014 WI 97, 357 Wis. 2d 360, 851 N.W.2d 302, 12-0584. Even rational restrictions on the right to vote are invidious if they are unrelated to voter qualifications. However evenhanded restrictions that protect the integrity and reliability of the electoral process itself are not invidious. An Indiana statute requiring citizens voting in person on election day, or casting a ballot in person at the office of the circuit court clerk prior to election day, to present photo identification issued by the government did not violate constitutional standards. Crawford v. Marion County Election Board, 553 U.S. 181, 128 S. Ct. 1610, 170 L. Ed. 2d 574 (2008). III,3Secret ballot. Section 3. [Repealed April 1986; as created April 1986] All votes shall be by secret ballot. [1983 J.R. 30, 1985 J.R. 14, vote April 1986] III,4Residence saved. Section 4. [Repealed April 1986; see 1983 J.R. 30, 1985 J.R. 14, vote April 1986.] III,5Military stationing does not confer residence. Section 5. [Repealed April 1986; see 1983 J.R. 30, 1985 J.R. 14, vote April 1986.] III,6Exclusion from suffrage. Section 6. [Repealed April 1986; see 1983 J.R. 30, 1985 J.R. 14, vote April 1986.] III,7Private donations and grants; designated election officials. Section 7. [As created April 2024] III,7(1)(1) No state agency or officer or employee in state government and no political subdivision of the state or officer or employee of a political subdivision may apply for, accept, expend, or use any moneys or equipment in connection with the conduct of any primary, election, or referendum if the moneys or equipment are donated or granted by an individual or nongovernmental entity. III,7(2)(2) No individual other than an election official designated by law may perform any task in the conduct of any primary, election, or referendum. [2021 J.R. 17, 2023 J.R. 10, vote April 2024] An “election official designated by law” is synonymous with “election official,” as defined in s. 5.02 (4e), and includes village clerks, municipal clerks, county clerks, municipal and county boards of canvassers, and school district clerks. OAG 1-24.
A “task in the conduct of any primary, election, or referendum” refers to work in directing or leading the administration of an election. Sub. (2) does not apply to more ordinary circumstances in which an election official works with or is assisted by non-election officials in ensuring the proper administration of an election, such as work with vendors on the layout and printing of ballots, information technology personnel on software and hardware security, law enforcement personnel on ballot transport, or employees or volunteers assisting with mailings or other clerical work. It also does not apply to activities that are distinct from the “administration” of an election, such as the kinds of efforts by non-election officials to encourage voting that commonly take place in connection with elections. OAG 1-24.
LEGISLATIVE
IV,1Legislative power. Section 1. The legislative power shall be vested in a senate and assembly. An act validating existing sewerage districts previously held to be unconstitutionally organized is within the power of the legislature. Madison Metropolitan Sewerage Dist. v. Stein, 47 Wis. 2d 349, 177 N.W.2d 131. The power given vocational district boards to levy taxes does not violate this section. The manner of appointing board members is constitutional. West Milwaukee v. Area Bd. Vocational, T. & A. Ed., 51 Wis. 2d 356, 187 N.W.2d 387. One legislature cannot dictate action by a future legislature or a future legislative committee. State ex rel. Warren v. Nusbaum, 59 Wis. 2d 391, 208 N.W.2d 780. The legislature may constitutionally prescribe a criminal penalty for violation of an administrative rule. State v. Courtney, 74 Wis. 2d 705, 247 N.W.2d 714. Provisions of s. 144.07 (1m) [now s. 281.34 (1m)], that void a DNR sewerage connection order if electors in the affected town area reject annexation to the city ordered to extend sewerage service, represents a valid legislative balancing and accommodation of 2 statewide concerns: urban development and pollution control. City of Beloit v. Kallas, 76 Wis. 2d 61, 250 N.W.2d 342. Mediation - arbitration under s. 111.70 (4) (cm) is a constitutional delegation of legislative authority. Milwaukee County v. District Council 48, 109 Wis. 2d 14, 325 N.W.2d 350 (Ct. App. 1982). The court will invalidate legislation only for constitutional violations. State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 338 N.W.2d 684 (1983). Reference in a statute to a general federal law, as amended, necessarily references the current federal law where the act named in the statute is repealed and the law rewritten in another act. Because reference is stated as part of a contingency, it does not constitute unlawful delegation of legislative authority to U.S. Congress. Dane County Hospital & Home v. LIRC, 125 Wis. 2d 308, 371 N.W.2d 815 (Ct. App. 1985). The supreme court declined to review the validity of the procedure used to give notice of a joint legislative committee on conference alleged to violate the state open meetings law. The court will not determine whether internal operating rules or procedural statutes have been complied with by the legislature in the course of its enactments and will not intermeddle in what it views, in the absence of constitutional directives to the contrary, to be purely legislative concerns. Ozanne v. Fitzgerald, 2011 WI 43, 334 Wis. 2d 70, 798 N.W.2d 436, 11-0613. When administrative agencies promulgate rules, they are exercising legislative power that the legislature has chosen to delegate to them by statute. Stated otherwise, agencies have no inherent constitutional authority to make rules, and their rule-making powers can be repealed by the legislature. It follows that the legislature may place limitations and conditions on an agency’s exercise of rulemaking authority, including establishing the procedures by which agencies may promulgate rules. Koschkee v. Taylor, 2019 WI 76, 387 Wis. 2d 552, 929 N.W.2d 600, 17-2278. The legislature may enact the laws the executive is duty-bound to execute, but it may not control his knowledge or intentions about those laws. Nor may it mute or modulate the communication of his knowledge or intentions to the public. Because there was no set of facts pursuant to which 2017 Wis. Act 369’s restrictions on guidance documents would not impermissibly interfere with the executive’s exercise of his core constitutional power, they were in that respect facially unconstitutional. Service Employees International Union (SEIU), Local 1 v. Vos, 2020 WI 67, 393 Wis. 2d 38, 946 N.W.2d 35, 19-0614. Proposed amendments to bills creating variable obscenity laws that would exempt motion picture films shown at theaters that comply with the film ratings of the motion picture association of America constitute an unconstitutional delegation of legislative power. 58 Atty. Gen. 36.
The one man-one vote principle is inapplicable to legislative committees since that principle applies only to the exercise of legislative powers and such powers cannot constitutionally be delegated to these committees. There has been no such unconstitutional delegation as to the joint committee on finance, the board on government operations, the joint legislative council or the committee to visit state properties. Legislative oversight of administrative rules discussed. 63 Atty. Gen. 173.
The elections clause under article I, section 4, of the U.S. Constitution does not insulate state legislatures from review by state courts for compliance with state law. Nothing in the elections clause instructs that a state legislature may prescribe regulations on the time, place, and manner of holding federal elections in defiance of provisions of the state’s constitution. A state legislature may not create congressional districts independently of requirements imposed by the state constitution with respect to the enactment of laws. Moore v. Harper, 600 U.S. ___, 143 S. Ct. 2065, 216 L. Ed. 2d 729 (2023). IV,2Legislature, how constituted. Section 2. The number of the members of the assembly shall never be less than fifty-four nor more than one hundred. The senate shall consist of a number not more than one-third nor less than one-fourth of the number of the members of the assembly. IV,3Apportionment. Section 3. [As amended Nov. 1910, Nov. 1962, and Nov. 1982] At its first session after each enumeration made by the authority of the United States, the legislature shall apportion and district anew the members of the senate and assembly, according to the number of inhabitants. [1907 J.R. 30, 1909 J.R. 55, 1909 c. 478, vote Nov. 1910; 1959 J.R. 30, 1961 J.R. 32, vote Nov. 1962; 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982] The phrase “according to the number of inhabitants” in this section was intended to secure the preexisting right to proportionate representation and apportionment as nearly equal as practicable among the several counties for the election of members of the legislature. This section gives the legislature the duty to enact a redistricting plan after each federal census to prevent one person’s vote in an underpopulated district from having more weight than another’s in an overly populated district. Johnson v. Wisconsin Elections Commission, 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469, 21-1450. Unlike the Wisconsin Constitution’s Declaration of Rights, article IV, sections 3, 4, and 5, of the Wisconsin Constitution express a series of discrete requirements governing redistricting. These are the only Wisconsin constitutional limits the supreme court has ever recognized on the legislature’s discretion to redistrict. Johnson v. Wisconsin Elections Commission, 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469, 21-1450. The Wisconsin Constitution requires the legislature—a political body—to establish the legislative districts in this state. Just as the laws enacted by the legislature reflect policy choices, so will the maps drawn by that political body. Nothing in the constitution empowers the supreme court to second-guess those policy choices, and nothing in the constitution vests the court with the power of the legislature to enact new maps. Johnson v. Wisconsin Elections Commission, 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469, 21-1450. In this state’s constitutional order, redistricting remains the legislature’s duty. Any remedy the court may impose would be in effect only until such time as the legislature and governor have enacted a valid legislative apportionment plan. Johnson v. Wisconsin Elections Commission, 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469, 21-1450. State and federal law require a state’s population to be distributed equally amongst legislative districts with only minor deviations. When it comes to population equality, courts adopting remedial maps are held to a higher standard than state legislatures as courts have a judicial duty to achieve the goal of population equality with little more than de minimis variation. Clarke v. Wisconsin Elections Commission, 2023 WI 79, 410 Wis. 2d 1, 998 N.W.2d 370, 23-1399. Institutional populations, as well as other populations that may include persons disenfranchised for some reason, may not be disregarded for redistricting purposes. 70 Atty. Gen. 80.
When drawing state and local legislative districts, jurisdictions are permitted to deviate somewhat from perfect population equality to accommodate traditional districting objectives, among them: preserving the integrity of political subdivisions, maintaining communities of interest, and creating geographic compactness. When the maximum population deviation between the largest and smallest district is less than ten percent, a state or local legislative map presumptively complies with the one-person, one-vote rule. The equal protection clause does not mandate use of the voter-eligible population. It is plainly permissible for jurisdictions to measure equalization by the total population of state and local legislative districts. Evenwel v. Abbott, 578 U.S. 54, 136 S. Ct. 1120, 194 L. Ed. 2d 291 (2016). Those attacking a state-approved plan must show that it is more probable than not that a population deviation from absolute equality of districts of less than 10 percent reflects the predominance of illegitimate reapportionment factors rather than the legitimate considerations. Harris v. Arizona Independent Redistricting Commission, 578 U.S. 253, 136 S. Ct. 1301, 194 L. Ed. 2d 497 (2016). IV,4Representatives to the assembly, how chosen. Section 4. [As amended Nov. 1881 and Nov. 1982] The members of the assembly shall be chosen biennially, by single districts, on the Tuesday succeeding the first Monday of November in even-numbered years, by the qualified electors of the several districts, such districts to be bounded by county, precinct, town or ward lines, to consist of contiguous territory and be in as compact form as practicable. [1880 J.R. 9S, 1881 J.R. 7A, 1881 c. 262, vote Nov. 1881; 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982] Under this section, assembly districts must be bounded by county, precinct, town, or ward lines. Given federal one person, one vote requirements, bounding every assembly district by county, precinct, town, and ward lines may not be possible. However, this section must be given full effect to the extent it does not conflict with federal law. The court is particularly skeptical of town and ward splits because the smaller the political subdivision, the easier it may be to preserve its boundaries. Johnson v. Wisconsin Elections Commission, 2022 WI 19, 401 Wis. 2d 198, 972 N.W.2d 559, 21-1450. Contiguity is a constitutional imperative for all districts. Contiguous territory is territory that is touching or in actual contact. In other words, a district must be physically intact such that a person could travel from one point in the district to any other point in the district without crossing district lines. The contiguity requirements are not satisfied when a district includes detached territory that is a “municipal island,” a portion of a municipality separated from the main body of the municipality that is created via annexation, even if the main body of the municipality is located in the district. Clarke v. Wisconsin Elections Commission, 2023 WI 79, 410 Wis. 2d 1, 998 N.W.2d 370, 23-1399. Touch-point contiguity occurs when territory is contiguous only because it is joined at a single point. Since territory that touches at a single point is indeed touching, touch-point contiguity alone does not violate the contiguity requirement. Clarke v. Wisconsin Elections Commission, 2023 WI 79, 410 Wis. 2d 1, 998 N.W.2d 370, 23-1399. U.S. Supreme Court decisions requiring almost absolute equality of population among electoral districts render nugatory the state court’s construction of art. IV, sec. 4, as prohibiting assembly districts from dividing counties except where a county is entitled to more than one assembly member. 58 Atty. Gen. 88.
IV,5Senators, how chosen. Section 5. [As amended Nov. 1881 and Nov. 1982] The senators shall be elected by single districts of convenient contiguous territory, at the same time and in the same manner as members of the assembly are required to be chosen; and no assembly district shall be divided in the formation of a senate district. The senate districts shall be numbered in the regular series, and the senators shall be chosen alternately from the odd and even-numbered districts for the term of 4 years. [1880 J.R. 9S, 1881 J.R. 7A, 1881 c. 262, vote Nov. 1881; 1979 J.R. 36, 1981 J.R. 29, vote Nov. 1982] Contiguity is a constitutional imperative for all districts. Contiguous territory is territory that is touching or in actual contact. In other words, a district must be physically intact such that a person could travel from one point in the district to any other point in the district without crossing district lines. The contiguity requirements are not satisfied when a district includes detached territory that is a “municipal island,” a portion of a municipality separated from the main body of the municipality that is created via annexation, even if the main body of the municipality is located in the district. Clarke v. Wisconsin Elections Commission, 2023 WI 79, 410 Wis. 2d 1, 998 N.W.2d 370, 23-1399. Touch-point contiguity occurs when territory is contiguous only because it is joined at a single point. Since territory that touches at a single point is indeed touching, touch-point contiguity alone does not violate the contiguity requirement. Clarke v. Wisconsin Elections Commission, 2023 WI 79, 410 Wis. 2d 1, 998 N.W.2d 370, 23-1399. IV,6Qualifications of legislators. Section 6. No person shall be eligible to the legislature who shall not have resided one year within the state, and be a qualified elector in the district which he may be chosen to represent. A candidate for election to Congress need not be a resident of the district at the time he or she files nomination papers and executes the declaration of intent to accept the office if elected. A candidate for congress must be an inhabitant of the state at the time of election. 61 Atty. Gen. 155.
IV,7Organization of legislature; quorum; compulsory attendance. Section 7. Each house shall be the judge of the elections, returns and qualifications of its own members; and a majority of each shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and may compel the attendance of absent members in such manner and under such penalties as each house may provide. IV,8Rules; contempts; expulsion. Section 8. Each house may determine the rules of its own proceedings, punish for contempt and disorderly behavior, and with the concurrence of two-thirds of all the members elected, expel a member; but no member shall be expelled a second time for the same cause. Courts have no jurisdiction to review legislative rules of proceeding, which are those rules having to do with the process the legislature uses to propose or pass legislation or how it determines the qualifications of its members. Milwaukee Journal Sentinel v. DOA, 2009 WI 79, 319 Wis. 2d 439, 768 N.W.2d 700, 07-1160. The legislature cannot sentence a person to confinement for contempt without notice and without giving an opportunity to respond to the charge. Groppi v. Leslie, 404 U.S. 496, 92 S. Ct. 582, 30 L. Ed. 2d 632 (1972). IV,9Officers. Section 9. [As amended April 1979 and Nov. 2014] IV,9(1)(1) Each house shall choose its presiding officers from its own members. IV,9(2)(2) The legislature shall provide by law for the establishment of a department of transportation and a transportation fund. [1977 J.R. 32, 1979 J.R. 3, vote April 1979; 2011 J.R. 4, 2013 J.R. 1, vote Nov. 2014] IV,10Journals; open doors; adjournments. Section 10. Each house shall keep a journal of its proceedings and publish the same, except such parts as require secrecy. The doors of each house shall be kept open except when the public welfare shall require secrecy. Neither house shall, without consent of the other, adjourn for more than three days. IV,11Meeting of legislature. Section 11. [As amended Nov. 1881 and April 1968] The legislature shall meet at the seat of government at such time as shall be provided by law, unless convened by the governor in special session, and when so convened no business shall be transacted except as shall be necessary to accomplish the special purposes for which it was convened. [1880 J.R. 9S, 1881 J.R. 7A, 1881 c. 262, vote Nov. 1881; 1965 J.R. 57, 1967 J.R. 48, vote April 1968] How the legislature meets, when it meets, and what descriptive titles the legislature assigns to those meetings or their operating procedures constitute parts of the legislative process with which the judicial branch has no jurisdiction or right to interfere. League of Women Voters of Wisconsin v. Evers, 2019 WI 75, 387 Wis. 2d 511, 929 N.W.2d 209, 19-0559. IV,12Ineligibility of legislators to office. Section 12. No member of the legislature shall, during the term for which he was elected, be appointed or elected to any civil office in the state, which shall have been created, or the emoluments of which shall have been increased, during the term for which he was elected. A legislator may be elected to a constitutional or statutory state elective office even though the emoluments of the office were raised during the legislator’s legislative term. If so elected, the legislator is limited by s. 13.04 (1) to the emoluments of the office prior to the increase. A legislator is not eligible, however, for appointment to an office created during the legislator’s term or to an office the emoluments of which appointive office were raised during the legislator’s legislative term. 63 Atty. Gen. 127.
IV,13Ineligibility of federal officers. Section 13. [As amended April 1966] No person being a member of congress, or holding any military or civil office under the United States, shall be eligible to a seat in the legislature; and if any person shall, after his election as a member of the legislature, be elected to congress, or be appointed to any office, civil or military, under the government of the United States, his acceptance thereof shall vacate his seat. This restriction shall not prohibit a legislator from accepting short periods of active duty as a member of the reserve or from serving in the armed forces during any emergency declared by the executive. [1963 J.R. 34, 1965 J.R. 14, vote April 1966] IV,14Filling vacancies. Section 14. The governor shall issue writs of election to fill such vacancies as may occur in either house of the legislature. IV,15Exemption from arrest and civil process. Section 15. Members of the legislature shall in all cases, except treason, felony and breach of the peace, be privileged from arrest; nor shall they be subject to any civil process, during the session of the legislature, nor for fifteen days next before the commencement and after the termination of each session. The privilege under this section can be invoked by a legislator only if the legislator is subpoenaed, not if an aide is subpoenaed. State v. Beno, 116 Wis. 2d 122, 341 N.W.2d 668 (1984). The members of the Wisconsin Constitutional Convention did not intend to create a legislative privilege from criminal arrest and prosecution when they included this section in the Wisconsin Constitution. The phrase “treason, felony and breach of the peace” in this section was intended to mean all crimes. State v. Burke, 2002 WI App 291, 258 Wis. 2d 832, 653 N.W.2d 922, 02-2161. IV,16Privilege in debate. Section 16. No member of the legislature shall be liable in any civil action, or criminal prosecution whatever, for words spoken in debate. The sphere of legislative action protected under this section is broader than floor deliberations. A legislator may invoke the privilege under this section to immunize an aide from a subpoena to testify as to an investigation conducted by the aide at the legislator’s request. State v. Beno, 116 Wis. 2d 122, 341 N.W.2d 668 (1984). Not all activities of a legislator are protected by this section insofar as that activity is not an integral part of the deliberative and communicative processes. While legislative acts are protected by the speech and debate clause, political acts are not. Hiring, directing, and managing legislative caucus staff to oversee political campaigns is not protected. By its very nature, engaging in campaign activity is political. State v. Chvala, 2004 WI App 53, 271 Wis. 2d 115, 678 N.W.2d 880, 03-0442. See also State v. Jensen, 2004 WI App 89, 272 Wis. 2d 707, 681 N.W.2d 230, 03-0106. This section provides only immunity from prosecution based on use of communications, and not secrecy for communications of government officials and employees. Custodian of Records v. State, 2004 WI 65, 272 Wis. 2d 208, 680 N.W.2d 792, 02-3063.
