Wisconsin lawmakers strike down three emergency election rules

The fight over who writes the rules for elections in Wisconsin continues.

The Legislature’s rule making body, the Joint Committee for Review of Administrative Rules, on Monday voted to suspend three proposed emergency rules from the Wisconsin Elections Commission that dealt with uniform rules for absentee voting, challenges to candidates and challenges to nominating paperwork.

Attorney Sklyar Croy, with the Wisconsin Institute for Law and Liberty, told lawmakers none of the solutions that WEC is looking to make permanent are true emergencies.

“The Commission issued scope statements 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 beginning of the 2024 election cycle to begin emergency rulemaking, and then took several months thereafter to finish,” Croy said. “This committee should not allow an administrative agency to just mouth the word emergency as a means of avoiding permanent rulemaking procedures.”

Croy said allowing WEC to use the emergency rule process for these three rules would allow the Elections Commission to side-step the lengthy review that comes with permanent rulemaking.

Worse, state Rep. Janel Brandtjen, R-Menomonee Falls, said it would allow the Elections Commission to act as if the legislature doesn’t exist.

“I think that this emergency rulemaking process needs to be shut down, because other agencies are paying attention,” Brandtjen said. “This process of going around the legislature is incredibly dangerous. And if WEC has the ability to move this, I can guarantee you that we will have a lot of emergency rules.”

Democrats, however, argue it is the rulemaking process and the JCRAR who are dangerously working-around the process of making laws.

“I think it's apt that we're talking about separation of powers, when we've just had a Supreme Court ruling on this very issue. It strikes me that what this committee is taking upon itself is essentially doing the court's job and doing the executive branch’s job,” Sen Kelda Roys, D-Madison, said. “This committee is, you know, pretty problematic from a separation of power standpoint.”

That Supreme Court ruling limited the power of the legislature’s Joint Committee on Finance when it came to spending already appropriated money.

The decision to suspend WEC’s proposed emergency rules doesn’t change much for Wisconsin’s pending elections.

The absentee ballot proposal would have been the most impactful, but without it, clerks across Wisconsin will continue to provide their voters with absentee ballot instructions. The proposed emergency rule would simply have prohibited those clerks from issuing any guidance that did not adhere to WEC’s suggested rules.