GOVERNMENT ACCOUNTABILITY BOARD
The statement of scope for these rules, SS 038-15, was approved by the Governor on April 3, 2015, published in Register No. 712A2 on April 13, 2015, and approved by the Government Accountability Board on April 29, 2015.
This emergency rule was approved by the Governor on May 12, 2015.
The Government Accountability Board adopts the following emergency rule to create GAB, ch. 10, relating to the use of technical college system student identification cards for voting.
FINDING OF EMERGENCY
The Government Accountability Board finds that an emergency exists and that these rules are necessary for the immediate preservation of the public peace and welfare.
The Government Accountability Board finds that such emergency rules are necessary to clarify how voters must comply with the photo identification requirements in Wis. Stat. §§5.02(6m) and 6.79(2) for the May 19, and June 9, 2015, special elections and any other special or regularly scheduled elections that may occur shortly thereafter.
ANALYSIS BY THE GOVERNMENT ACCOUNTABILITY BOARD
Explanation of agency authority:
Wis. Stat. §5.05(1) provides that the Government Accountability Board (“G.A.B.” or “Board”) has “the responsibility for the administration of chs. 5 to 12, other laws relating to elections and election campaigns, subch. III of ch. 13, and subch. III of ch. 19.” The G.A.B. may “[p]romulgate rules under ch. 227 applicable to all jurisdictions for the purpose of interpreting or implementing the laws regulating the conduct of elections . . . or ensuring their proper administration.” Wis. Stat. §5.05(1)(f). The photo identification requirement is found in chapters 5 and 6 of the Wisconsin Statutes. See 2011 Wisconsin Act 23. The G.A.B. has the statutory authority to promulgate emergency rules to ensure the proper administration of elections. On November 15, 2011, the Joint Committee for Review of Administrative Rules (“JCRAR”) ordered the G.A.B., pursuant to Wis. Stat. §§227.10(1) and 227.26(2), to promulgate an emergency rule to allow for the use of technical college system student identification cards to meet the photo identification requirements of 2011 Wisconsin Act 23, which was enacted on May 25, 2011. The G.A.B. could not comply with JCRAR’s order until the U.S. Supreme Court denied certiorari on the judicial challenges to the photo identification requirements. The G.A.B. may now comply with JCRAR’s order.
Related statute or rule:
Plain language analysis:
2011 Wisconsin Act 23 created the requirement that electors present an acceptable form of photo identification as a condition of obtaining a ballot. 2011 Wisconsin Act 23 also created the list of documents that qualify as identification for purposes of voting. These rules clarify that an identification card issued by an institution in the Wisconsin Technical College System is an acceptable form of photo identification for voting if the card is unexpired or remains unexpired for no more than 2 years, and contains the date of issuance and the student’s signature and photo. These conditions are identical to the requirements for acceptable photo identification cards issued by other accredited educational institutions.
Summary of, and comparison with, existing or proposed federal regulation:
The 2002 federal Help America Vote Act (HAVA), 52 USC §15301 et seq., contains a provision requiring states to receive identification from individuals who register to vote for the first time, by mail. HAVA §303 (b)(2)(A)(i)(I). The HAVA requirement relates to voter registration. The State photo identification requirement relates to receiving a ballot. The federal requirement simply refers to “current and valid photo identification.” The federal requirement does not describe specific types of acceptable photo identification.
Comparison with rules in adjacent states:
Illinois: Illinois does not require voters to present photo identification to receive a ballot if the voter is already registered to vote.
Iowa: Iowa does not require voters to present photo identification to receive a ballot if the voter is already registered to vote.
Michigan: Michigan requires voters to present photo identification to receive a ballot and vote, but voters may also sign an affidavit attesting that the voter is not in possession of photo identification. Michigan permits voters to use student identification from either a high school or an accredited institution of higher education to present at the polls to receive a ballot. Michigan’s community college system is accredited, and students in those colleges may use their college photo identification cards for voting purposes.
Minnesota: Minnesota does not require voters to present photo identification to receive a ballot if the voter is already registered to vote.
Summary of factual data and analytical methodologies:
At its meeting on November 9, 2011, the Board determined that a Wisconsin Technical College System institution is accredited under Wis. Stat. §39.30 (1)(d), and therefore, an elector may use an identification card issued by such an institution for voting purposes if the card also meets the requirements of Wis. Stat. §5.02(6m). The Board made this determination with advice from G.A.B. staff regarding the accepted rules of statutory interpretation, starting with the plain language of the statute. Wis. Stat. §39.30 (1)(d) defines an “accredited” institution as an “institution accredited by a nationally recognized accrediting agency . . . or, if not so accredited, is a nonprofit institution of higher education whose credits are accepted on transfer by not less than 3 institutions which are so accredited, on the same basis as if transferred from an institution so accredited.” The Board also considered information regarding the legislative history of 2011 Wisconsin Act 23. The Board did not consider potential public policy reasons when determining whether applicable statutes permitted the use of Wisconsin Technical College System student identification cards for voting purposes.