A fight continues over who writes the rules for Wisconsin elections.
The Joint Committee on Review of Administrative Rules, the state Legislature’s rule-making body, voted Monday to halt three proposed emergency rules from the Wisconsin Election Commission dealing with uniform rules on absentee voting, challenging candidates and challenging nomination papers.
Scria Croy, an attorney with the Wisconsin Institute for Law and Freedom, told lawmakers that none of the solutions the WEC is trying to make permanent are true emergencies.
“The commission issued a scope statement in September 2023. It then took until late spring 2024 for Gov. Tony Evers to approve the emergency rules. The commission waited until six months before the 2024 election cycle began to begin making emergency rules, then took several months to complete,” Croy said. “This commission should not allow an agency to just utter the word emergency as a way to avoid the permanent rulemaking process.”
Croy said allowing the WEC to use the emergency rules procedure for those three rules would allow the elections commission to avoid the lengthy review that would come with making permanent rules.
To make matters worse, Republican state Rep. Janelle Brandtjen of Menomonee Falls said the bill would allow the Elections Commission to act as if the Legislature doesn’t exist.
“I think this emergency rulemaking process needs to stop because other agencies are taking notice,” Brandtjen said. “This process of bypassing Congress is very dangerous. And if the WEC has the power to move this, I’m sure we’ll see a lot of emergency regulations.”
But Democrats argue it’s the rulemaking process and JCRAR that dangerously circumvent the legislative process.
“I think it’s appropriate to have a discussion about separation of powers when the Supreme Court just ruled on this issue. It seems to me that what this commission is taking on is essentially doing both the work of the courts and the work of the executive branch,” said Sen. Kelda Royce, D-Madison. “This commission is pretty problematic from a separation of powers perspective.”
The Supreme Court ruling limited the powers of Parliament’s Joint Committee on Finance with regard to spending of funds already allocated.
The decision to suspend the WEC’s proposed emergency rules does not result in any major changes to future elections in Wisconsin.
The absentee ballot proposal would have had the most impact, but without it, clerks across Wisconsin would continue to issue absentee ballot instructions to voters. The proposed emergency rule would simply prohibit clerks from issuing instructions that do not comply with the WEC’s proposed rule.
