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Wisconsin Republicans to add referendum questions on crime, welfare to ballot ahead of crucial Wisconsin Supreme Court race

Republicans rejected an effort by Democrats to add an advisory referendum on repealing Wisconsin's abortion ban

Wisconsin state capitol building
Phil Roeder (CC-BY)

Republican lawmakers are poised to add two referendums to Wisconsin’s April ballot in what Democrats are calling a blatant attempt to drive up GOP turnout for the state’s critical Supreme Court election.

The GOP ballot questions include one introduced only days ago that would ask voters whether they support requiring adults without kids to search for work to receive welfare benefits. The proposal is an advisory referendum, meaning whatever the public decides won’t change state law one way or another.

The other referendum — which would amend the Wisconsin Constitution — focuses on what judges can consider when they set cash bail, emphasizing the kind of tough-on-crime message that has formed the bedrock of conservative judicial campaigns for years.

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In an effort to counter those messages, Democrats proposed their own advisory referendum Tuesday to ask the public whether they think the state should repeal its pre-Civil War abortion ban that was reinstated after the U.S. Supreme Court overturned Roe v. Wade. Republican legislators rejected that proposal.

Both moves underscore the massive importance of Wisconsin’s April 4 election, which could swing the ideological balance of the Wisconsin Supreme Court from conservative to liberal for the first time since 2008.

The proposed advisory referendum, introduced Friday afternoon by top GOP leaders, will ask voters: “Shall able-bodied childless adults be required to look for work in order to receive taxpayer-funded welfare benefits.”

Wisconsin law already requires adults without kids to conduct job searches to receive unemployment insurance, but Senate Majority Leader Devin LeMahieu told reporters the state could expand that and require them for people to receive Medicaid, or health care for low-income residents.

“It’s so important to show the support of Wisconsin voters that if you’re going to receive welfare benefits that you need to apply for work,” LeMahieu said. “Able-bodied adults should be working.”

Democrats called the move political and cynical.

“Their resolution, simply put, attacks low-income people in the state of Wisconsin, and it’s born out of a consideration to their base for the spring election,” said Democratic Senate Minority Leader Melissa Agard, D-Madison during a state Capitol press conference. “They’re trying to gin up their voters, simply put.”

Dueling advisory referendums ahead of a pivotal election

While Democrats objected to the content of Republicans’ nonbinding referendum on public benefits, their own referendum would use the same tactic on the abortion issue.

An amendment sponsored by Agard would have replaced the public benefits referendum with a question asking: “Shall Wisconsin’s 1849 abortion law be repealed and the constitutional rights guaranteed under Roe v. Wade be restored?”

Republicans used a procedural move to reject the abortion referendum on a party-line vote. They did not debate the plan, and when asked for comment after session, LeMahieu did not address the proposal from Democrats.

“Today it was about workforce,” LeMahieu told reporters.

Placing an advisory referendum on the ballot is relatively easy procedural step for the Legislature, which need only pass it once in both the Senate and the Assembly. Still, the move has been relatively rare in recent years, possibly because advisory referendums don’t actually do anything.

The potential political benefit for Republicans is that the referendum questions they’ve chosen could appeal to voters who may otherwise be unlikely to cast ballots for the officially nonpartisan, sometimes low-key office of supreme court justice.

Waukesha County Judge Jennifer Dorow, former Wisconsin Supreme Court Justice Dan Kelly, Dane County Circuit Court Judge Everett Mitchell and Milwaukee County Circuit Court Judge Janet Protasiewicz are all seeking a 10-year term on the court to replace conservative Justice Patience Roggensack, who is retiring.

Voters will narrow the field to two in a Feb. 21 primary. The top two vote-getters will advance to the general election on April 4.

During the brief debate on the public benefits resolution, Democrats noted that Republicans did not ask for the public’s opinion when they passed the state law requiring work searches to receive unemployment insurance.

Sen. Dianne Hesselbein, D-Middleton, suggested that if Republicans really wanted to hear from the public, they might ask about a GOP proposal to move to a flat tax, where wealthy residents would see the largest tax cuts.

“Will there be a referendum on the flat tax plan?” Hesselbein asked her GOP colleagues. “I think people might want to weigh in on that.”

In other states, voters have the power to change state law or the constitution through citizen ballot initiatives, but that’s not an option in Wisconsin. During his reelection campaign last year, Evers called on lawmakers to amend the state constitution to allow for binding referenda, but Republicans dismissed the proposal as political posturing.

Proposed constitutional amendment on cash bail passes Senate

The other resolution passed by Senators would go beyond offering advice to lawmakers, amending the Wisconsin Constitution to change the way judges impose cash bail on people charged with committing violent crimes.

The proposal would explicitly allow judges to consider a person’s criminal history, among other factors, when determining whether and how much bail to impose.

While some GOP lawmakers have been working on the issue for years, it gained new traction after the Waukesha Christmas Parade tragedy of 2021, where Darrell Brooks Jr. killed six people and injured dozens when he drove an SUV into a crowd while out on $1,000 cash bail for prior crimes.

Right now when judges consider cash bail, the state Constitution instructs that they can consider whether “there is a reasonable basis to believe that the conditions are necessary to assure appearance in court.”

A resolution cosponsored by Sen. Van Wanggaard, R-Racine, would instruct judges to consider other issues, like whether the accused person has a previous conviction for a violent crime.

“We’re giving judges the ability to look at the whole picture when setting bail for violent crimes,” Wanggaard said. “That’s it.”

The proposed amendment leaves some issues to be addressed later. For example, it says judges can consider whether cash bail is needed to protect members of the community from “serious harm” but leaves it up to the Legislature to define what that means at a later date.

“It’s going to cause straight confusion,” said Sen. Lena Taylor, D-Milwaukee.

Taylor said the proposed amendment would also exacerbate disparities in the criminal justice system.

“Wealthy individuals will likely not be able to be stopped by higher cash bail,” Taylor said.

Two Democratic lawmakers — Sen. Robert Wirch, D-Kenosha and Sen. Brad Pfaff, D- Onalaska — joined all Republicans to support the plan in the Senate. It’s expected to pass the Assembly this month.

Amending the state Constitution requires two consecutive sessions of the Legislature to pass identical resolutions before the issue is put before voters for the final say.