Wisconsin activists sue to keep bail crackdown, welfare work requirements off primary ballot

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A lawsuit filed Tuesday by Wisconsin criminal justice advocacy groups seeks to block two Republican-sponsored measures from appearing on the April ballot, arguing that they were not submitted on time to the correct elections officials.

One question is a proposed constitutional amendment that would allow judges to consider more factors when setting bail for violent offenders. The other is an advisory referendum that asks voters if they believe that able-bodied, childless welfare recipients should be required to look for work.

The Legislature passed the measures on Jan. 19. State law requires them to be "filed with the official or agency responsible for preparing the ballots" at least 70 days before the election. That made the deadline for submitting these questions Jan. 25.

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The Legislature submitted the ballot measures with the state elections commission on Jan. 19, the day they were passed. The commission filed them with county elections officials on Jan. 26 and told the clerks that the measures should be placed on the April 4 ballot.

The commission, in a memo to clerks certifying the measures for the ballot, addressed questions about the proper place to file such questions. The commission said it was the only entity where state-level referenda questions can be filed.

The lawsuit was filed against the elections commission in Dane County Circuit Court by EXPO Wisconsin and WISDOM. EXPO stands for or Ex-Incarcerated People Organizing. It is an affiliate of WISDOM, a statewide faith-based organization. Both groups work with people who spent time behind bars and fight against mass incarceration. Both groups were opposed to the ballot measures.

Their lawsuit argues that the measures should have been delivered to county clerks and the Milwaukee County Elections Commission by Jan. 25. It is those local officials, not the state elections commission, who prepare the ballot, the lawsuit contends.

Activists are suing to keep two measures off Wisconsin ballots this spring.

The lawsuit argues that "the Resolutions were not timely filed and therefore that they do not qualify for inclusion on the ballot for the April 4, 2023 Spring Election." It asks the court to disallow them from appearing on the ballot.

The elections commission, in its Jan. 26 memo certifying the measures, contends that the 70-day filing deadline was met when the Legislature submitted the questions to the commission on Jan. 19.

Riley Vetterkind, a spokesperson for the commission, did not immediately respond to an email requesting comment on the lawsuit.

The criminal justice groups are represented by attorneys from Law Forward and the Stafford Rosenbaum law firms, both of which have challenged a number of Republican-authored laws in recent years.

Republicans moved quickly after the legislative session began on Jan. 2 to get the measures on the April 4 ballot. They were the first measures to be taken up and passed this year.

The bail amendment, which has been discussed for years, won approval in the last legislative session and passed this year with bipartisan support. A constitutional amendment has to pass two consecutive legislative sessions before it can be put on the ballot for final approval.

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Republicans also quickly passed the welfare referendum, introducing it in January and passing it days later. Gov. Tony Evers and other Democrats decried the move as nothing more than a ploy to drive up turnout for conservatives in the April election.

A race for Wisconsin Supreme Court on the April ballot will determine whether conservatives maintain control of the court or it flips to liberals, with issues ranging from abortion to redistricting on the line. The court will also be in place leading up to, and immediately after, the 2024 presidential election.

All four of the candidates in the Supreme Court race, two liberals and two conservatives, are supportive of the bail amendment. Supporters have been working since 2017 to pass it. Their efforts gained momentum in 2021 after Darrell Brooks Jr. drove his SUV into a Waukesha Christmas parade, killing six people. Brooks had posted $1,000 in an earlier case just two days before the parade.

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Under the amendment, a judge could consider a defendant’s potential risk to public safety, including his or her criminal history, when setting bail. Currently, cash bail is set only as a means to ensure the person appears in court. Democratic opponents have argued the amendment could create further inequity in the criminal justice system by allowing wealthy defendants to more easily get out of jail.