by Henry Redman, Wisconsin Examiner
September 11, 2024
The Wisconsin Elections Commission on Wednesday approved the final text on a permanent administrative rule guiding the conduct of election observers at polling places in the state. After two years of work and multiple rounds of public comment, the rule will now be sent to Gov. Tony Evers who can decide to send it to a legislative committee for final approval.
While this is the first permanent rule approved by the commission since the agency’s creation in 2016, the rule won’t be in effect for the election in November.
The administrative rule guides how election observers are allowed to act in a polling place, where they are allowed to stand and how close to certain activities they’re allowed to be. The rule also lays out how observers can challenge certain activities they witness; when and how election officials can remove observers from the polling place; and what members of the news media are allowed to do, including taking pictures or video inside polling places.
The rule was approved 5-1. Republican commissioner Robert Spindell cast the only no vote after a number of speakers during the meeting’s public comment period objected to some of the rule’s provisions and questioned if it would be approved by the Republicans who control the Legislature’s Joint Committee on the Review of Administrative Rules (JCRAR).
“We need to make sure that this thing is acceptable and get through the Legislature,” Spindell said. “I think at this point in time, it’s my opinion that if we put forth this rule right now, it’s not going to make it.”
But Commissioner Don Millis, also a Republican, warned about “letting perfect be the enemy of good,” especially on a body like the elections commission, in which any action requires a bipartisan compromise due to the need for a four-vote majority and the body’s three-three partisan divide.
“What frustrates me is … oftentimes the perfect becomes the enemy of the good,” Millis said. “I would like to see some of the changes that were talked about, but we’ve debated that, and if I could, if it were up to me, I would make many of those changes. If I could do it by fiat, I would do it, but we have a commission that has six votes, and it was necessary for every aspect of this rule to get four votes. Politics is the art of the possible. So what you try to do is you try to get done what you can.”
Democratic Commissioner Ann Jacobs said the rulemaking process included an advisory committee that drew input from a wide array of political perspectives, but it was time to move forward.
“Eventually you have to stop,” she said. “We can fiddle and fiddle and fiddle and the only thing that we wind up with is nothing.”
After the vote, Spindell said he regretted having to vote no, but after the commission briefly celebrated the staff and work required to pass an administrative rule, Democratic Commissioner Mark Thomsen said if he really regretted the no vote, “then you have the guts and you vote it.”
With the approved rule not taking effect until after November, the commission debated the creation of a “pocket guide” for election officials and observers that outlines expectations for how observers should behave at a polling place, when officials should remove observers or get law enforcement involved, and what the penalties for election interference are.
Spindell objected to including those penalties, arguing that telling observers they’re subject to fines and imprisonment if they interfere with someone voting might discourage people from observing.
“I can’t tell you how terrible I think this is in terms of the observers,” he said. “It’s trying to discourage observers, and what will happen when this thing gets out, it’ll be published, and they’ll start putting that in there. If you’re an observer, you’re going to get put in jail for six months and $1,000 fine and all this stuff. So I think it needs to be completely, you know, completely revised.”
Other commissioners questioned how simply being made aware of what the law already is would be discouraging. Jacobs noted that election observing has become more common in recent years, with outbursts becoming more regular. Earlier this year in a Democratic special election primary, right-wing election conspiracy theorists disrupted voting at multiple polling places in Glendale, Jacobs pointed out.
“If people are like, ‘I don’t like the existing rules,’ well, that’s fine, they can make a petition about that,” she said. “But the thing is, what we’re writing down is you don’t have the right to disturb an election site. And if the chief inspector tells you, you know, I’m denying your challenge and you need to go and return to your observing, and they refuse, yeah, the chief has the right to remove them. That’s already the law. If people are worried about that, then they have to think about their own behavior.”
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