WJI v. WEC
On May 26, 2022, Law Forward and the ACLU of Wisconsin filed an amicus brief explaining the importance of WJI v. WEC, which has implications for our democracy well beyond the single constitutional amendment at issue in that case. On September 6, the Wisconsin Supreme Court heard oral arguments in this case—the first of its new term. This case addressed the question of how much information voters must be given when voting on whether or not to amend the state constitution, and how many changes can be lumped into one ballot question.
The Wisconsin Legislature has three proposed constitutional amendments on voting rights that may be on the ballot as soon as next year. How those amendments are presented could determine their fate—and this case will decide how they’re presented to voters.
With the ACLU, we’ve argued that ballot questions should fully inform voters what changes an amendment makes to our state constitution, and that key information should be provided when describing the proposed amendment on the ballot. Further, when proposed amendments make changes on multiple topics, voters should be permitted to vote on each topic separately—as separate ballot questions. Wisconsin’s law already requires this and we’ve asked the Court to enforce it.
On May 16, the Wisconsin Supreme Court rejected the challenge to the constitutional amendment known as “Marsy’s Law.” We are disappointed with this result, which is wrong on the merits, and with the majority’s overly formalistic interpretative approach. The majority insists that the Wisconsin Constitution can only be understood through originalist interpretation, though its reasoning reveals the real-world limitations of that method: the Constitution offers no guidance on ballot questions, so the Court both cloaks itself in originalism and makes up its own rules, anyway. The majority then adopts an inappropriately narrow (and highly subjective) rule that a ballot question describing a constitutional amendment is constitutionally valid unless it is “factually inaccurate in a fundamental way.” In applying this new, narrow rule, the majority then barely engages with WJI’s core argument, which we also highlighted in our amicus brief: the ballot question told voters that the amendment would not affect defendants’ rights, when in fact, it necessarily does—and already has.
We are concerned with the implications of this decision for future ballot questions on constitutional amendments. Wisconsinites have the right to be fully and accurately informed on important issues like constitutional amendments, and we will continue to advocate for that right.
May 26, 2022
Amicus brief filed.
May 16, 2023
On May 16, the Wisconsin Supreme Court rejected the challenge to the constitutional amendment known as “Marsy’s Law.” We are disappointed with this result, which is wrong on the merits, and with the majority’s overly formalistic interpretative approach.
Amicus Brief, Election Administration, Good Governance
Supreme Court of Wisconsin