On June 25, Wisconsin Attorney General Josh Kaul issued a legal opinion clarifying the state’s new constitutional provision, Article III § 7(2), which prohibits non-election officials from performing “task[s] in the conduct of . . . election[s].” The provision, approved by voters in April, caused confusion and concern among Wisconsin clerks. AG Kaul’s opinion helps to ameliorate that concern by adopting the interpretation of Article III § 7(2) advocated in Dane County’s original request for an opinion and in a comment Public Rights Project (PRP) submitted on behalf of a coalition of 18 municipal clerks. Specifically, the Attorney General’s opinion makes clear that while only “election officials” as defined in Wisconsin statute can play a role in “directing or leading the administration of [an] election,” election officials may continue to rely on vendors, other government employees, and volunteers to perform other election-related activities necessary to ensure free and secure elections.
Until now, many clerks feared that Article III § 7(2) could be interpreted to prohibit them from relying on other government agencies, vendors, and volunteers as they have in past elections. Clerks’ offices, for instance, often contract with voting machine vendors to provide real-time technical assistance on election day, rely on law enforcement for transportation of sealed ballots, receive digital security assistance from county or private IT experts, or enlist volunteers and city employees to help set up tables and voting booths at polling locations. It would be nearly impossible for clerks to efficiently conduct secure elections without any reliance on any outside entities. AG Kaul’s opinion recognizes this reality, and the fact that Article III § 7(2) was intended to prevent outside actors from playing a management role in election administration. Although Wisconsin courts are not required to follow an AG opinion, they often do so.
“We applaud Attorney General Kaul for his thoughtful and thorough opinion,” said Graham Provost, staff attorney for Public Rights Project’s Election Protection Hub. “The opinion does exactly what we had hoped for. It adopts the most legally compelling interpretation of Article III § 7(2), and provides Wisconsin clerks with the certainty they need to do their jobs and effectively administer this year’s elections.”
A copy of the AG’s opinion is available here. A copy of PRP’s comment to the AG is available here.
