By Brendan Fischer on November 18, 2011

On the same day activists began collecting signatures to recall Wisconsin Governor Scott Walker, Republican legislators took steps that could allow the governor to reverse the state elections board on rules that would protect student voting and make it easier for recall proponents to circulate petitions. Democrats allege the move is a politically-motivated attack on the independence of the non-partisan board, made possible by an American Legislative Exchange Council-inspired law that ties the hands of state agencies and gives the governor unprecedented power.

GAB Ordered to Reverse Course on Recall and Election Rules

On Tuesday, November 15, the GOP-controlled Joint Committee for Review of Administrative Rules ordered the Government Accountability Board (GAB), a board of six retired judges charged with administering elections, to follow the formal rulemaking process for three decisions it had made in recent months. Formal administrative rules are subject to veto by the governor under a law passed by the legislature earlier this year.

The first GAB policy would have allowed voters to access a form online, print their recall petition, sign it, then send it to the group coordinating recalls. It would have made it easier for those collecting recall petitions because the groups would not have to gather the signatures face-to-face and door-to-door.

The second would have permitted universities to put stickers on student ID cards that could then be used for voting. Wisconsin's new voter ID law permits the use of student IDs for voting, but only if the ID includes certain information not currently on any of the student IDs issued in the state. The sticker would have allowed student IDs to meet the necessary criteria, and made it easier for students to participate in recall votes.

The third policy would have allowed technical college ID cards to count as college IDs under the voter ID law, expanding the pool of eligible voters.

By reversing the GAB decisions, said state Rep. Mark Pocan (D-Madison), "Republicans sent a strong signal that Scott Walker wants the fairest election he can rig." The proposed GAB policies would have simplified the current effort to recall Governor Walker and made it easier for students (who tend to vote Democratic) to cast their ballots, leading Democrats like Pocan to suspect the Republican override was politically motivated.

Attack on GAB Independence

Others agreed that the move threatens the independence of the officially non-partisan agency. "What we're doing here is we're neutering the GAB," said veteran state Senator Fred Risser (D-Madison). Even the editorial page of the conservative-leaning Wisconsin State Journal wrote the GAB "deserves special autonomy because of its unique role in refereeing hotly contested, highly partisan political contests and questions."

Republican leaders countered that the GAB decisions should have been created as formal administrative rules, which require additional procedural steps, rather than passed informally. "I think this is a substantive policy change," said Joint Committee co-chair Leah Vukmir (R-Wauwatosa). "The more important something is, the more it should be put in rules," said Sen. Glenn Grothman, R-West Bend.

The Joint Committee instructed the GAB to promulgate its policies as formal rules, meaning the policies go through a period of public comment and hearings, and are subject to greater legislative oversight. However, under Act 21, a law passed during the 2011 Special Session (the same session that bore the anti-union Act 10 and voter ID), the governor now has the power to veto or refuse to implement any administrative rule.

Governor Walker expressed his intention to exercise his Act 21 veto authority in an executive order issued on November 5.

Act 21 Bears ALEC DNA, Burdens Agencies

Act 21 not only gives the governor significant power over administrative agencies, but also enacts new barriers to agencies' rulemaking authority, and bears a resemblance to the American Legislative Exchange Council's Economic Impact Statement Act. It narrows the scope of rules an agency can promulgate, and requires several administrative agencies conduct an in-depth "impact analysis" assessing the economic effect of the proposed rule and explaining why alternatives were not pursued, in addition to other procedural hurdles. Conducting such an assessment is time-consuming and imprecise, and critics say the law is primarily directed at thwarting new rules and regulations.

Act 21 does more than limit the state elections board. As the Wisconsin recall begins in November, so, too, does the hunting season, and Act 21 ties the hands of the Department of Natural Resources, the agency that makes the rules governing hunting and fishing. Act 21 will reportedly double the amount of time it takes to make changes like modifying the hunting season or increasing the size limit for muskies. "Act 21 has already started to cause severe problems in adopting simple hunting, fishing and trapping regulations," Chuck Matyska, president of the Wisconsin Wildlife Federation, told the Milwaukee Journal-Sentinel. "Virtually all of the many regulations governing hunting, fishing and trapping in Wisconsin must be adopted by administrative rule and are supported by sportsmen and women. There should not be unproductive delays and bureaucracy in their adoption."

Rep. Gary Hebl (D-Sun Prairie) and Sen. Risser are sponsoring Assembly Bill 355, which would restore independence to the GAB by exempting it from Act 21's gubernatorial veto. The move is supported by the editorial board of the Wisconsin State Journal and good government groups like Common Cause. But the bill would not change Act 21's impact on agencies like the Department of Natural Resources.

Polls Show Majority Support Recall

Governor Walker's bold moves since taking office have impacted a broad array of Wisconsin traditions, from hunting to voting to drinking, and polls suggest many Wisconsinites don't like it.

The Joint Committee's move to control how recalls are governed and how elections are administered follow polls showing a majority of Wisconsinites support the recall of Governor Walker. Only 38 percent of state residents want to keep the governor in office, a ten point drop from his ratings last spring. 37 percent "strongly disapprove" and another 21 percent "disapprove" of Scott Walker's performance.

As support for the governor declines, legislators have taken other steps to change election procedures in ways that might fix recalls in the GOP's favor, and Walker fans have made their own efforts to thwart recalls and intimidate petition-gatherers.

The GAB has 30 days from November 15 to promulgate formal rules on recall petition procedures and student ID requirements, after which Governor Walker may decide whether the rules will be implemented.

Brendan Fischer

Brendan Fischer is CMD's General Counsel. He graduated with honors from the University of Wisconsin Law School.