Scope Statements
Government Accountability Board
This statement of scope was approved by the governor on December 2, 2011.
Rule No.
Relating to
Use of technical college system student identification cards for voting.
Subject
Creates GAB Chapter
10 - Voter Identification, and specifies that a Wisconsin Technical College System (WTCS) student identification card may be used for voting.
Objective of the Rule
The proposed rule implements a directive from the Joint Committee for the Review of Administrative Rules (JCRAR). The directive requires the Government Accountability Board (G.A.B.) to promulgate an emergency rule specifying that a Wisconsin Technical College System (WTCS) student identification card may be used as acceptable identification for voting.
Emergency Rule Authority
The agency is authorized to promulgate the rule as an emergency rule because it has been directed to do so by the Joint Committee for the Review of Administrative Rules pursuant to Wis. Stats. ss.
227.10 (1),
227.26 (2).
Permanent Rule
The agency plans to promulgate this rule as both an emergency rule and a permanent rule. This scope statement is submitted in support of both the emergency rule and the permanent rule.
Policy Analysis
The proposed rule clarifies that a WTCS student identification card is included in the description of student identification cards that may be used as acceptable identification in order to receive a ballot. In
2011 Wisconsin Act 23, the Legislature established a voter identification requirement for electors to receive a ballot. The legislation delineates the types of identification that may be used to meet the requirement. Wis. Stats. s.
5.02 (6m). These types of identification are:
1.
An operator's license issued under Ch.
343;
2.
An identification card issued under s.
343.50;
3. An identification card issued by a U.S. uniformed service;
4. A U.S. passport;
5. A certificate of U.S. naturalization;
6.
An unexpired driving receipt under s.
343.11;
7.
An unexpired identification card receipt under s.
343.50;
8. An identification card issued by a federally recognized Indian tribe in this state;
9.
An unexpired identification card issued by a university or college in this state that is accredited as defined in s.
39.30 (1) (d).
On November 9, 2011, the G.A.B. made a determination that a Wisconsin Technical College System institution is accredited under Wis. Stats. s.
39.30 (1) (d). Based on that determination, the Board directed staff to include WTCS student ID cards as an acceptable form of identification for voting in its training and educational materials as part of the agency's responsibility to administer the voter identification law pursuant to Wis. Stats. s.
5.05 (1).
The Board's analysis applied judicially accepted rules of statutory interpretation. It looked first to the plain language of the statute. The Board determined that WTCS institutions are accredited under Wis. Stats. s.
39.30 (1) (d). In the absence of an applicable statutory definition of college or university, the Board relied on commonly used dictionary definitions of college which included institutions similar to the WTCS.
In applying the plain language of the statute as required by law, the Board chose not to rely on a staff analysis which traced the legislative history of the student identification card provision in Act 23. The Board noted in its consideration that a comparison of the new identification requirement with statutory provisions related to the use of student identification cards for voter registration was not applicable because the separate reference to technical colleges was a result of a Revisor's correction in the 1990's to harmonize the terms technical college and technical institution.
The Board did not give weight to a failed legislative amendment explicitly authorizing the use of WTCS student ID cards for voting because it relied on the plain language of the statute defining the types of higher education institutions whose student identification cards were acceptable for use for voting. In addition, the Board recognized a failed legislative amendment could be viewed as failing because it was not necessary, not just because the Legislature was explicitly denying the policy. In view of the plain language of the statute linking the use of identification cards to those higher education institutions accredited under Wis. Stats. s.
39.30 (1) (d), the Board determined that it and a reviewing court would not attempt to decipher legislative intent under standard rules of statutory construction.
The Board did not determine whether permitting the use of WTCS student ID cards for voting was good public policy. It determined that the law as written included WTCS institutions. As a result, 400,000 WTCS students have as an alternative the same use of a student identification card for voting purposes that is available to students at other universities and colleges in Wisconsin. The Board viewed its determination as equivalent to acknowledging that students at University of Wisconsin System institutions could use a student ID card for voting purposes, a conclusion which would seem to not require separate rule-making to implement.
The alternative to promulgating this rule is to significantly restrict the number of electors who may use a student identification card in order to receive a ballot. The Board addressed this issue because agency staff raised a question about legislative intent as it was developing its implementation approach to training local election officials and educating the public on the voter identification requirement which goes into effect for the February 2012 Spring Primary Election.
Statutory Authority
The Board issued its determination pursuant to its responsibility and authority to issue advisory opinions under section
5.05 (6a), Stats., and to conduct voter education under section 5.05 (12). However, given the directive of JCRAR, section
5.05 (1) (f) Stats., provides explicit authority for the G.A.B. to promulgate rules to ensure the proper administration of elections. Section
227.11 (2) (a), Stats., provides clear authority for the G.A.B. to promulgate rules to ensure the proper administration of statutes under its jurisdiction, which includes laws related to the administration of elections.
Comparison with Federal Regulations
The 2002 federal Help America Vote Act (HAVA),
42 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 Section 303 (b)(2)(A)(i)(I). That requirement is a voter registration requirement and is much more general than the state identification requirement for receiving a ballot. The federal requirement simply refers to a “current and valid photo identification." The federal requirement does not delineate specific types of photo identification as does the Wisconsin statute.
Entities Affected by the Rules
WTCS institutions desiring to issue student identification cards acceptable for voting purposes will be affected by this rule. All students at a WTCS institution also will be affected by this rule as well as Wisconsin's 1,851 municipal clerks responsible for administering elections and approximately 25,000 poll workers who staff voting locations on Election Day. The impact of the rule will be on town, village and city government. The rule does not impact businesses, private economic sectors or public utility ratepayers.
Economic Impact
The rule will have minimal or no impact on the governmental entities impacted by the rule. Municipal clerks and poll workers will be provided with informational and training materials on the acceptable forms of identification for voting. This rule merely adds some additional types of identification to the materials. In fact the rule will eliminate possible confusion if a voter offers a technical college student identification card when appearing at the polling place to vote.
Estimate of Time Needed to Develop the Rules
10 hours.
Agency Contact
Shane Falk, Staff Counsel
Wisconsin Government Accountability Board
212 E. Washington Avenue, Third Floor
P.O. Box 7984
Madison, WI 53707-7984
Office: (608) 266-8005
Direct: (608) 266-2094
Justice
This statement of scope was approved by the governor on December 19, 2011.
Rule No.
