Wisconsin criminal justice groups argue for invalidating constitutional amendments on bail

MADISON, Wis. — Wisconsin criminal justice advocates argued in court Wednesday that Republican-backed cash bail constitutional amendments approved by voters last year should be invalidated over procedural flaws, a case that elections officials and the Legislature call a cynical attempt to undo election results.

Dane County Circuit Judge Rhonda Lanford did not rule from the bench following arguments. She said she would issue a written decision later.

The case revolves around whether the Legislature sent the ballot questions to the correct elections officials and whether deadlines for submission were met. If successful, the amendments could be struck from the state constitution and put on a future ballot for another vote.

One amendment allows judges to consider past convictions for violent crimes when setting bail for someone accused of a violent crime. Another allows judges to consider a defendant’s risk to public safety, including their criminal history, when setting bail required to release someone before trial.

Voters also approved an advisory referendum, which is not enforceable, saying that able-bodied, childless welfare recipients should be required to look for work.

The judge last year rejected the effort to stop the April 2023 vote on the three questions. She ruled then that those bringing the lawsuit failed to prove they would suffer “irreparable harm” if the measures were not blocked from appearing on the ballot.

Jeff Mandell, attorney for the criminal justice groups, argued Wednesday that the three measures were not properly submitted to the people and must be declared null and void.

“We’re not saying that these can never be a part of the constitution," Mandell said. "All we’re saying is those who run our elections have to follow the law. People can vote on them again.”

Attorneys for the Legislature and state elections commission countered that the law was followed closely enough and a “minor procedural error” should not result in overturning the election results.

State law requires ballot questions to be “filed with the official or agency responsible for preparing the ballots” at least 70 days before the election. That made the deadline for the measures Jan. 25, 2023. The Legislature sent the measures to the Wisconsin Election Commission on Jan. 19, 2023, but the commission did not file the measures with county election officials until Jan. 26, 2023.

The groups suing argued that county election officials are responsible for preparing ballots, not the state commission, and therefore the Legislature filed the ballot questions in the wrong place.

The elections commission countered that it was not mandatory for the Legislature to submit the questions to county elections officials, and there’s no penalty for not doing it. Commission attorney Charlotte Gibson also argued that the 70-day deadline is not mandatory.

“There is no evidence that any voters — let alone a sufficient number of voters to change the election results — were misled in voting” for the resolutions due to the alleged procedural violation, the Legislature said in court filings.

The Legislature called the lawsuit a “meritless and cynically undemocratic attempt to undo the results of Wisconsin’s 2023 Spring Election," where the measures were approved “overwhelmingly.”

The constitutional amendments were approved with 67% and 68% support, while 80% of voters approved of the welfare resolution.

WISDOM, a faith-based statewide organizing group, and its affiliate, EXPO Wisconsin, which stands for Ex-Incarcerated People Organizing, brought the lawsuit. Both groups fight against mass incarceration and work with people who have spent time behind bars.