Wisconsin is number one in legislative efforts to overhaul election administration, according to an updated report published yesterday. The report, by States United Democracy Center, Protect Democracy and Law Forward, tracks legislative and other attempts at increasing the risk of so-called “election subversion,” which the report defines as “the risk that an election’s declared outcome does not reflect the choice of the voters.” The report breaks down different ways a bill proposed by a state legislature can do this. And according to these metrics, Wisconsin’s state legislature led the way, proposing 38 bills in the last legislative session to rehaul how the state’s elections are run.
For an explainer of what the report found, I spoke with Elizabeth Pierson, a legal fellow and attorney at Law Forward.
“The goal of this report is really to sound an alarm, a warning bell, about threats we’re seeing to our democracy, both in Wisconsin where Law Forward is active and also nationwide,” Pierson said.
The report details state-by-state trends to capture how state legislatures are amending their election laws. Per the US constitution, rules for how elections are run are largely handled by the states, so states have some leeway in deciding the “times, places, and manner” of elections. This discretion allows for state differences in election details like, for example, voter ID laws. The report tracks new election-related bills, flagging ones they think may increase the risk of election subversion based on a five category system.
“So this is really an update on our May report of this year,” Pierson explained, “which focused almost exclusively on the legislative proposals. And for that we’re looking at bills introduced by state legislatures that we think increased the risk of election subversion. So again, that we think increased the risk that the will of the voters would not determine the outcome of an election. And in that category of legislative proposals, we actually had five sub-categories and those were usurping control over election results, requiring partisan or unprofessional reviews of elections, seizing power over election responsibilities, creating unworkable burdens in election administration, and imposing disproportionate criminal or other penalties.”
Wisconsin has proposed 38 bills that Law Forward has flagged. Twenty-nine of these bills failed, seven were vetoed by Governor Tony Evers, and two constitutional amendments were advanced to be voted on by the next session. Those amendments forbid the use of private donations/grants to be used for election administration and place limitations on how state and federal funds can be used.
Wisconsin was the state with the highest number of these election overhaul bills proposed. Arizona was a close second, at 35 to our 38; Tennessee was third at 18.
I asked Pierson what makes Wisconsin ripe for election legislation.
“One reason for that is probably our gerrymandered legislature, which kind of lends itself to people taking more extreme positions because so many seats there are safe for whichever party holds them,” Pierson answered.
This coincides with a 2020 study from Harvard’s Electoral Integrity Project that found that, in the 2020 presidential election, Wisconsin ranked last among the states in a “district boundaries index” – a measure of experts’ perceived fairness of electoral district lines. It also ranked low in the “electoral law index,” a measure of how election laws restrict citizen’s rights, minority voters and favor one party over another.
Law Forward, States United, and Protect Democracy are not the only ones measuring election integrity. The Heritage Foundation, a conservative think tank, ranked Wisconsin ninth in election integrity, earning high marks for voter ID implementation. Closer to home, the Wisconsin Institute for Law and Liberty or WILL has also investigated Wisconsin’s so-called election integrity, criticizing absentee ballot measures but determining “in all likelihood, more eligible voters cast ballots for Joe Biden than Donald Trump.”
To these other groups, and to those who may be skeptical of Law Forward’s report, Pierson offered this rejoinder, “The state Supreme Court upheld the 2020 election results as going to Joe Biden and every single study of the 2020 elections, including by WILL as well as the nonpartisan Legislative Research Bureau, has also found that those elections were free and fair and that Joe Biden won them.”
The report also points to the potential consequences of an upcoming Supreme Court case that could give state legislatures even more power to set election rules and radically change the way elections are run. The case, Moore v. Harper, opens the possibility for the nation’s high court to decide that state legislatures have near-absolute power to regulate state and federal elections, taking away power from governors, secretaries of state, and elections commissioners.
To those who may read this updated report and despair, Pierson placed emphasis on the power of the ballot box. “We have elections coming up where democracy is on the ballot, and people just need to be aware of that and vote accordingly.”
