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Who counts as an election official? Dane County asks AG to clarify constitutional change

Attorney General Josh Kaul plans to release an opinion in response to the request, a spokesperson said

Woman at a voting place
Election voting booths. Darren Hauck/AP Photo

Dane County is asking the state’s attorney general to weigh in on the meaning of a newly adopted constitutional amendment, which limits how elections can be run going forward.

Wisconsin Attorney General Josh Kaul, a Democrat, plans to release an opinion in response to the request, a spokesperson said Tuesday. His office is accepting public comment on the issue through May 13.

Wisconsin voters approved an amendment on April 2, which says “No individual other than an election official designated by law may perform any task in the conduct of any primary, election, or referendum.”

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But, in a letter sent to Kaul’s Department of Justice last week, Dane County Corporation Counsel Carlos Pabellón wrote that the new language leaves room to interpret exactly who counts as an election official and exactly what counts as an election-related task.

For example, local governments often rely on IT professionals to make sure election technology is secure, and local clerks sometimes use police or sheriff’s deputies to transport sealed ballots, the letter notes.

“The question is whether these ‘tasks’ which are vital to the conduct of elections must be performed by an ‘election official’ that is formally appointed by a local clerk and executed an oath,” the letter says.

In an interview with WPR, Democratic Dane County Clerk Scott McDonell said it’s routine for counties to contract with outside vendors to print ballots.

“Is that an election official duty?,” McDonell said. “Should the county be in-sourcing that? That’s a good example of the confusion that comes from poorly worded referendums.”

McDonnell says the people overseeing elections across Wisconsin need guidance as soon as possible, since preparations are ongoing for two elections later this year.

The Aug. 13 primary will determine who advances in congressional and state legislative races, and the Nov. 5 general election includes the presidential race in addition to a U.S. Senate seat.

“If we need to make changes, we got to do it right away,” McDonell said.

Courts could have final say in dispute

While an attorney general’s opinion can provide legal guidance in Wisconsin, it’s not the same as a decision by a judge, or the state’s Supreme Court.

Wood County Clerk Trent Miner, a Republican who also leads the Wisconsin County Clerks Association, says aspects of the new amendments are ambiguous.

But, while Miner says he welcomes guidance from the the attorney general, he believes such ambiguities will eventually be resolved through litigation.

“Somebody’s gonna get mad at something we’ve done and will take us to court,” Miner said. “The courts are going to have to decide exactly what what did what did this mean, and how far does does it go? So I think, ultimately, it will be in the courts’ hands.”

Alongside the amendment related to election officials, voters this spring approved another GOP-backed measure which bans private donations and grants from being used to conduct elections in Wisconsin.

Supporters of the pair of referendums say their goal is preserving election integrity and limiting outside influence.

In particular, Republicans raised concerns about grants funded largely by tech billionaire Mark Zuckerberg, which allowed localities to do things like expand early voting and provide personal protective equipment at the height of the COVID-19 pandemic.

Eileen Newcomer is with the League of Women Voters of Wisconsin, which opposed the two-election related ballot measures. She says she’s hopeful the Wisconsin Election Commission will soon give guidance on the matter to local election officials.

“When our campaign to try to provide education for voters on these two amendments, we raised a lot of similar questions that Dane County has raised in their request of the DOJ,” Newcomer said. “They seem pretty straightforward, when you just read the text, but then once you get into the nuances of running elections are a lot of open questions.”

But Rep. Tyler August, R-Walworth wrote in an email that “the language in the amendment and the will of the voters is clear.”

August sponsored legislation that helped bring the measure to Wisconsin’s ballot.

“Only Wisconsin election officials should be in charge of Wisconsin elections,” August said in a statement. “I fully expect the Attorney General to come to the same conclusion.  My hope is this will not turn into another liberal attempt to find loopholes that do not exist in what voters have chosen to make the law of the land.”