FREQUENTLY ASKED QUESTIONS
Senate Committee on Elections, Election Process Reform and Ethics
Re: SB 941, SB 935, SB 936, SB 937, SB 938, SB 939, SB 942, SB 943 and SJR 101
1. Is the ERIC data accurate enough to be the basis to unregister voters?
The Electronic Registration Information Center's ("ERIC") data on possible movers has been supplied to Wisconsin three times: in 2017, 2019, and 2021. This information was then used to contact voters and queue them up for removal from the state's voter registration system, if they did not update or confirm their address. The first two times this ERIC data was provided to the Wisconsin Elections Commission ("WEC"), it ultimately turned out to have a 7 percent error rate. According to the WEC's own reports on the results of their voter outreach, over 16,000 registered Wisconsin voters on the 2019 ERIC list confirmed that they had never moved and wanted to remain registered at their existing residential address. ERIC is a well-respected consortium devoted to helping states maintain their voter rolls' accuracy and register unregistered, eligible voters. So how did this happen?
Wisconsin has a consistent 7 percent error rate--a false positive rate that has not been found in any of ERIC's other participating states. Despite contentions to the contrary, this has not been resolved by modifying the use of some of the Wisconsin DMV data that ERIC's system was ingesting.
More importantly, Wisconsin is unique among ERIC participating states in experiencing these widespread problems, and there is a simple reason for this. Only two ERIC member states, Wisconsin and Minnesota, are exempt from the entirety of the National Voter Registration Act (the “Motor Voter Law”), 52 U.S.C. §§ 20501, 20503(b)(2) and, therefore, need not comply with that federal law's requirement to offer voter registration at DMV offices. That means that Wisconsin voters who put down commercial or vacation home addresses on DMV forms are not given any notice that this will cause them to be flagged as moving to a new residential address and will have consequences for their voter registration. Notably, Minnesota does not experience the same problems with using ERIC data because election officials there automatically update the voter rolls for any change of address within the state. Minn. Stat. § 201.12(2.). By contrast, Wisconsin deactivates voters who move to a new municipality and only automatically updates a voter’s registration record for a move within the same municipality. Wis. Stat. § 6.50(3).
If ERIC has modified the way it is using Wisconsin DMV data, that is good news. But given the consistent 7 percent error rate in the past, there is no way to know that this new batch of data for 2021 is "reliable information" under Wisconsin law until this cycle has run its course and voters have had a chance to respond.
2. Does a constitutional amendment to ban third party funding increase election security and accessibility and generally help municipalities?
Both prior to and since the November 3, 2020 General Election, there was considerable coverage of municipalities’ use of grant funds from non-governmental organizations, sometimes also referred to as “third-party” or “private” election grants.
Municipalities in Wisconsin, regardless of size, often face funding shortfalls, in significant part due to reductions in revenue from the state. As a result, cities, towns, and villages sometimes seek and receive outside funding for various projects and services. Grant funding is used, for example, to build parks, support nutrition programs, or fund education programs.
In the lead-up to the 2020 General Election, organizations, as well as the federal government, made money available to municipalities to help them run safe elections during the height of the COVID-19 pandemic. Clerks used these funds to purchase personal protective equipment, hire additional poll workers or provide hazard pay, purchase additional equipment to deal with the sudden increase in absentee ballots, and to make it easier for voters to return those ballots. This available funding did not displace or disrupt the authority of clerks or boards of election to administer elections. In fact, prior to the election, cities, towns, and villages in Wisconsin repeatedly petitioned the legislature for additional funding to cover pandemic-related election costs in the spring of 2020. Only when the legislature declined to even take up the request, or respond to the other mounting needs presented by the pandemic, did localities turn to private philanthropy to meet those needs.
Grant funding was open to all election officials, and nearly 200 Wisconsin municipalities received grant funding in 2020. Any locality who applied received funding, and all eligible requests were covered. Across the country, more than 2,500 municipalities in 49 states received grants; over half of all grants nationwide went to election departments that serve fewer than 25,000 registered voters. Both prior to and after the election, courts rejected challenges to this funding.
3. Can clerks make minor corrections to the Witness Certificate completed for voters returning an absentee ballot?
Current Wisconsin Elections Commission guidance to municipal and county clerks would allow such minor changes. The WEC has recently been asked by JCRAR to promulgate an emergency rule on the correction of technical defects on absentee ballot certificate envelopes. SB 935 would enact a law making it illegal to do so. The reason cited by authoring Senators is that the certificate is a legal document and therefore cannot be altered by anyone other than the person who completed the document. Rejecting an absentee ballot for a purely technical defect on the absentee ballot certificate envelope such as omitted information that is obvious and/or can be readily ascertained from the face of the certificate or other readily available, commonly-used sources like WisVote, would unnecessarily and impermissibly deny the right to vote without advancing a compelling state interest. This would violate the First and Fourteenth Amendments under longstanding U.S. Supreme Court precedents. See Burdick v. Takushi, 504 U.S. 428, 434 (1992); Northeast Ohio Coalition for the Homeless v. Husted, 837 F.3d 612, 632 (6th Cir. 2016) (finding that “Ohio ha[d] made no such justification for mandating technical precision in the address and birthdate fields of the absentee-ballot identification envelope”). Furthermore, rejecting absentee ballots for such technical, easily-curable defects on the absentee ballot certificate envelope would also violate Title I of the 1964 Civil Rights Act, which provides that:
No person acting under color of law shall . . . deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election[.]
Therefore, the above federal constitutional and statutory rules prohibit rejecting such absentee ballots and sets boundaries on what the Legislature can do in ordering the rejection of ballots.
Additionally, no information is ever altered. Clerks only fill in missing information. The certifications are subject to the false statements statute, but there is nothing that says it's an "affidavit." They are certifications. The voter certification in Section 3 does not even certify that their information in Section 2 is accurate. The witness does certify that the voter's name and address are "correct," but the witness could have certified that incomplete information was accurate. And voters don't typically omit their information as it is preprinted on the envelope. The witness does NOT certify that their name and address are complete and accurate, just the voters. There is nothing in state law, state regulations, or on Form EL-122 (the certificate envelope) that prohibits filling in missing information not provided by a witness.
