The Wisconsin state Capitol in Madison is shown in 2017. Scott Bauer/AP
Debate over the 2020 presidential election rages on in the political swing state of Wisconsin, where a prominent Republican lawmaker wants to strip the state's bipartisan elections agency of its power — and give it to the Republican-controlled Legislature.
Wisconsin U.S. Sen. Ron Johnson first surfaced the idea of state lawmakers taking over control of federal elections in the state. He cites part of the U.S. Constitution that says state legislatures can set the "times, places and manner" of federal elections.
"I think it's imperative that we restore confidence in our election system for everybody," Johnson told Wisconsin Public Radio last week.
Johnson said he has "completely lost confidence" in the Wisconsin Elections Commission following a nonpartisan report on how the 2020 election was run in Wisconsin. The report, which was released late last month, found no widespread voter fraud or wrongdoing that would have changed the outcome of the 2020 election, but made dozens of recommendations for updating elections commission policies and state laws related to elections. It also outlined some ways the elections commission didn't follow some state laws in 2020.
"I think the state Legislature needs to reassert its authority [and] make sure that, in the federal elections, our election clerks follow state law, not guidances that are contrary to state law," Johnson said.
Sen. Ron Johnson, R-Wis., speaks on Capitol Hill in Washington in April. T.J. Kirkpatrick/AP
Several of the transgressions outlined in the report stemmed from elections commission guidance to local officials during the COVID-19 pandemic. Those included:
- Guidance that officials may adjourn before completing the counting of ballots on election night "as a result of unforeseen circumstances." State law makes no such allowance.
- Guidance that officials may move polling places, under certain circumstances. State law makes no such allowance.
- Guidance that officials should not send special voting deputies — individuals deputized by clerks to help with voting — into nursing homes and care facilities because of the COVID-19 pandemic, which conflicts with state law.
The guidance allowing for polling place relocation flexibility was in response to a state public health order that closed many polling places on short notice ahead of the April presidential primary.
Regarding nursing homes, commissioners who supported the proposal — five of the body's six bipartisan appointees — said they feared special voting deputies would be turned away from facilities because of pandemic restrictions. They called for absentee ballots to be used instead, a move they contend preserved residents' right to vote.
However, a sheriff in southeastern Wisconsin has alleged the nursing home guidance allowed eight residents at a local care facility to be inappropriately influenced by staff during voting. He alleged nursing home staff, who had no specialized training in helping residents to vote, encouraged vulnerable residents to vote, or to vote a certain way.
At a press conference last month, Sheriff Christopher Schmaling, who has publicly supported former President Donald Trump, called for the five members of the Wisconsin Elections Commission who voted for the policy to be charged with felonies.
"This is a law that was broken, and everybody who votes ought to feel the pain of that," Schmaling said.
The local district attorney hasn't pursued any criminal charges following the allegations — for members of the elections commission or nursing home staff.
The head of the elections commission faces calls to resign but says she won't
Since the election report and the nursing home allegations, the head of the Wisconsin Elections Commission, Meagan Wolfe, has faced calls from state GOP leaders to resign. Wolfe has said she won't step down, and argues Republicans are inappropriately targeting her.
"I do think that this is partisan politics at its worst," she said earlier this month. "But, at the same time, I have an obligation as the state's nonpartisan chief election official to rise above it."
If Wolfe were to step down, the Republican-controlled Legislature would likely get to name her replacement.
While the top two GOP leaders in Wisconsin have been sharply critical of the elections commission in recent weeks, they seem cool to Johnson's idea for state lawmakers to take over federal elections. They recently met with the senator, but state Assembly Speaker Robin Vos told reporters in Madison they didn't talk about Johnson's proposal.
"The idea that somehow that we're going to take over the elections and do all those things ... I've never studied that," Vos said. "I don't know about it."
The state Senate majority leader has cited legal concerns with Johnson's proposal
State Senate Majority Leader Devin LeMahieu has said he's not sure how a state legislative takeover of elections would work. He has also pointed out the elections agency has expertise lawmakers do not.
"I am not sure how that would be accomplished," LeMahieu told a Milwaukee TV station. "We have a state [elections] agency for a reason, to look at nomination signatures, to help candidates along the way, and to make sure clerks around the state know how to administer elections."
LeMahieu also cited some legal concerns with moving forward with the plan. Opponents have argued decisions by the U.S. Supreme Court and Wisconsin Supreme Court would bar the Legislature from taking such action. Others have contended there would be confusion if, amid legal battle over who has proper constitutional and legal authority, state lawmakers and the elections commission both issued elections guidance to clerks.
Johnson has acknowledged that possibility, but said he hopes it wouldn't come to that.
"I think that would be a very tragic result," he said. "I would imagine some counties would follow the state Legislature's guidance, which is what I believe they should do, and some might follow what [the elections commission] says."
For his part, Democratic Gov. Tony Evers has called the proposal a vast overreach by Republicans. All this year, Evers has stymied GOP-backed election bills, including new limits on absentee voting passed by the Legislature over the summer.
"As long as I'm governor of this great state, anti-democracy efforts like this will never see the light of day," the governor said at the time.
But Evers is up for reelection next year, and his top GOP challenger, former Lt. Gov. Rebecca Kleefisch, has joined the chorus of Republican criticism of the elections commission. Kleefisch filed a lawsuit against the commission over its 2020 guidance with the state Supreme Court earlier this month.
If Kleefisch is elected and Republicans maintain control of the Legislature, they would have a wide open road to change elections in Wisconsin — including who controls them.
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