Wisconsin Legislature: oag1-24

¶ 13. While there is a dispute as to the circumstances of that situation, this context illustrates that the prohibition on having non-election officials “perform any task in the conduct of any primary, election, or referendum” was aimed at preventing election officials from losing control of the oversight of the administration of elections. There is no indication that Wis. Const. art. III, § 7(2) was intended to sweep much more broadly and change the way in which election officials work with or are assisted by non-election officials in the vast majority of jurisdictions.

¶ 14. The plain language of the amendment further supports the conclusion that its application is limited to activities in directing or leading the administration of an election. The word “task” must be read not in isolation, but rather in the context of the words around it. The Wisconsin Supreme Court has recognized that “terms in . . . constitutional provisions, should be construed to give effect ‘to each and every word, clause and sentence’ and ‘a construction that would result in any portion

(See PDF for image)

2 Wis. Legis. Council, Hearing Materials for 2023 Wis. S.J. Res. 78, Testimony of State Sen. Eric Wimberger, J. Comm. on Shared Revenue, Elections & Consumer Prot. and Assemb. Comm. on Campaigns & Elections, Testimony on Senate Joint Resolution 78 Senate (Oct. 24, 2023), https://docs.legis.wisconsin.gov/misc/lc/hearing_testimony_and_materials

/2023/sjr78/sjr0078_2023_10_24.pdf; accord Wis. Legis. Council, Hearing Materials for 2021 Wis. S.J. Res. 101, Testimony of State Sen. Eric Wimberger, S. Comm. on Elections, Election Process Reform & Ethics, Testimony on Senate Joint Resolution 101 (Feb. 7, 2022), https://docs.legis.wisconsin.gov/misc/lc/hearing_testimony_and_materials/2021/sjr101/sjr01 01_2022_02_07.pdf; see also Cosponsorship Memorandum from State Reps. August and Bodden and State Sen. Wimberger to All Wisconsin Legislators (Sept. 19, 2023), https://www.wheelerbilltracking.com/upload/files/lrb/doc_5409532596509ff713b6884.442323 04.pdf (“In at least one case, private employees played a concerning role in the administration of the presidential election.”); Cosponsorship Memorandum Email from State Reps. August and Vorpagel and State Sen. Wimberger to All Wisconsin Legislators (Feb. 2, 2022 09:04 CST) (on file with the Wisconsin Department of Justice) (“In at least one instance, private individuals from [the grantor] played a concerning role in the administration of the election.”).

of a statute being superfluous should be avoided wherever possible.’” Wagner v.

Milwaukee Cnty. Election Comm’n, 2003 WI 103, ¶ 33, 263 Wis. 2d 709, 666 N.W.2d

816 (citation omitted).

¶ 15. In Wis. Const. art. III, § 7(2), the word “task” is limited by the prepositional phrase that follows it: “in the conduct of any primary, election, or referendum.” “[T]ask[s] in the conduct of . . . election[s]” refers to the work of conducting an election. Wis. Const. art. III, § 7(2). And the noun “conduct,” in this context, means “the act, manner, or process of carrying on: MANAGEMENT.”3 “Tasks in the conduct of an election” are thus not everything relating to the election more broadly, but activities in directing or leading the administration of the election.

CONCLUSION

¶ 16. In sum, I conclude that the meaning of “election official” is the same under Wis. Const. art. III, § 7(2) and Wis. Stat. § 5.02(4e) and that the work that Wis. Const. art. III, § 7(2) requires to be performed by election officials is work in directing or leading the administration of an election.

Sincerely,

JLK:NJZ:jrs

(See PDF for image)

3 Conduct, Merriam-Webster, https://www.merriam-webster.com/dictionary/conduct (last visited June 20, 2024); see also id. (meanings of “conduct” when used as a transitive verb include “to direct or take part in the operation or management of,” “to direct the performance of,” and “to lead from a position of command”).