Statement of Scope
Government Accountability Board
Rule No.:
GAB Ch.
10
_________________________________________________
Relating to:
Use of Technical College System Student Identification Cards for Voting
_
Rule Type:
Emergency and
Permanent
____________________________
_________
1.
Finding/nature of emergency (Emergency Rule only):
On November 15, 2011, the Joint Committee for Review of Administrative Rules (“JCRAR”) ordered the Government Accountability Board (“Board” or “G
.
A
.
B
.
”) to promulgate an emergency rule, pursuant to
Wis. Stat.
s.
227.26
(2)
(b)
,
to allow for the use of technical college system student identification cards to meet the photo identification requirements
of
2011 Wisconsin Act 23
(“Photo ID Law”)
,
which was enacted on May 25, 2011.
The Photo ID Law
requires
that electors present a photo identification to vote.
The G
.
A
.
B
.
suspended
the promulgation
process
when
state and federal courts stayed the implementation of the Photo ID Law pending further judicial review as to its state and federal constitutionality.
On March 23, 2015, the United States Supreme Court denied certiorari on the federal challenge to the Photo ID Law.
See
U.S. Supreme Court Order List, No. 14-803, p. 3 (“
Ruthelle
Frank, et al v. Walker, Gov. of WI, et al
”),
available at
http://www.supremecourt.gov/orders/courtorders/032315zor_b97d.pdf
.
According to
Wisconsin
Attorney General, the Honorable Brad
Schimel
,
such denial constituted the last judicial barrier to implementation of the Photo ID Law.
See
GAB
,
No Photo ID Required at April Election
(Mar. 23, 2015),
available at
http://gab.wi.gov/node/3580
. Plaintiffs in the federal Photo ID Law case filed additional motions
that are currently
pending, but the G
.
A
.
B
.
, at the advice of the Attorney General, takes the position that the Photo ID Law stands and should be implemented for elections
occurring
after April 7, 2015.
Th
e Board
anticipates that at least two school districts will hold special elections on May 19, 2015.
The
Board
anticipates that other special elections are likely this spring, including
a
potential
special election for a state senatorial district.
Board staff believes that the Board must promulgate an emergency rule to take effect before the May 19, 2015 special elections
,
so that the Photo ID Law may be
fully and
properly implemented for those elections and any other elections soon thereafter.
2.
Detailed description of the objective of the proposed rule:
The proposed rule implements a November 2011 directive from the Joint Committee for the Review of Administrative Rules (JCRAR). Th
at
directive requires the G
.
A
.
B
.
to promulgate an
emergency rule specifying that a Wisconsin Technical College System (
“
WTCS
”
) student identification card may be used as accep
table identification for voting
.
3.
Description of the existing policies relevant to the rule, new
polic
i
es
proposed to be included in the rule, and an analysis of policy alternatives
:
Existing Policy:
In the Photo ID Law, the Legislature established a voter identification requirement for electors to receive a ballot. The legislation delineates the types of identification that may be used to meet the requirement.
Wis. Stat.
s.
5.02 (6m)
. These types of identification are:
An operator’s license issued under
ch.
343
;
An identification card issued under s.
343.50
;
An identification card issued by a U.S. uniformed service;
A U.S. passport;
A certificate of U.S. naturalization;
An unexpired driving receipt under s.
343.11
;
An unexpired identification card receipt under s.
343.50
;
An identification card issued by a federally recognized Indian tribe in this state;
An unexpired identification card issued by a university or college in this state that is accredited as defined in s.
39.30 (1)
(d)
.
The Photo ID Law will be implemented for the May 19, 2015
special
election
s
and every election thereafter (pending
any potential
future legislative or judicial activity).
Thus, there is no existing guidance or clarification that a WTCS student identification card is an “unexpired identification card issued by a university or college in this state that is accredited, as defined in s.
39.90
(1
)
[
.]”
Wis. Stat.
s.
5.02
(6m)
(f)
.
Proposed Policy:
The proposed rule clarifies that a WTCS student identification card is included in the description of student identification cards that may be used as acceptable identification in order to receive a ballot
.
On November 9, 2011, the
Board
made a determination that a Wisconsin Technical College System institution is accredited under
Wis. Stat.
§
39.30 (1
)(
d)
.
Based on that determination, the Board directed
G
.
A
.
B
.
staff to include WTCS student
identification
cards as an acceptable form of identification for voting in its training and educational materials as part of the agency’s responsibility to administer the voter identific
ation law pursuant to
Wis. Stat
.
§
5.05 (1)
;
see also
Section
144(1)
of
2011 Wisconsin Act 23
(“[T]he government accountability board shall conduct a public informational
compaign
for the purpose of informing prospective voters of the voter identification requirements of this act.”).
Alternatives:
The alternative to promulgating this rule is to significantly restrict the number of electors who may use a student
identification
card in order to receive a ballot
and to create potential confusion for clerks and voters regarding acceptable forms of voter identification on Election Day
. The Board
originally
addressed this issue because
G.A.B.
staff
raised a question about legislative intent as it was developing its implementation approach to training local election officials and educating the public on the voter identification requirement
. The issue will again be raised and need to be clarified as the May 19, 2015 special elections approach.
4.
Detailed explanation of statutory authority for the rule (including the statutory citation and language):
General Authority
Wis. Stat.
s.
5.05
(1) provides that the
G.A.B.
has
“the responsibility for the administration of
chs
.
5
to
12
, other laws relating to elections and election campaigns,
subch
.
III of
ch.
13
, and
subch
.
III of
ch.
19
.” The
G.A.B.
may
“[p]
romulgate
rules under
ch.
227
applicable to all jurisdictions for the purpose of interpreting or implementing the laws regulating the conduct of elections . . . or ensuring their proper administration.”
Wis. Stat.
§
5.05(1
)(
f)
.
The Photo ID Law enacted and amended statutes in
chs
.
5
and
6
.
See
2011 Wisconsin Act 23
. Thus, the
G.A.B.
has
the statutory authority to promulgate the proposed rule to ensure the proper administration of elections.
Emerge
ncy Rule Authority
The agency is authorized to promul
gate
the rule as an emergency rule because it
was previously
directed to do so by the
JCRAR pursuant to
Wis. Stat
.
ss.
227.10 (1)
,
227.26 (2)
.
Further, Board staff believes that an emergency rule is necessary to preserve the public peace and welfare
by 1) properly implementing the Legislature’s enacted policy, and 2) remedying potential public confusion about the status of the Photo ID Law and how
voters
comply with it.
Therefore, a
n emergency rule is necessary to preserving the public peace and welfare before the May 19, 2015 special elections.
Finally,
on November 22, 2011,
the G
.
A
.
B
.
submitted a Statement of Scope
, substantially similar to this Statement,
to the Governor
. On December 2, 2011, the Governor
approved that Statement.
See
Letter from Gov. Scott Walker to Director Kevin Kennedy (Dec. 2, 2011) (attached hereto as “Exhibit A”). Pursuant to Executive Order #50, Sec. II, Para. 9, an agency must file an approved statement of scope to the “Legislative Reference Bureau within “thirty calendar days of approval if the agency intends to proceed with
rulemaking[
.]” Given that the
G.A.B.
did
not implement the emergency rule in 2011 due to the court-ordered stays, the Board now must submit a new Statement of Scop
e to the Governor for approval. This Statement of Scope describes the same objective as did
the 2011 Statement, and the Board staff requests the Governor to make a similar approval now.
Permanent Rule
The agency plans to promulgate this rule as both an emergency rule and a permanent rule. This scope statement is submitted in support of both the emergency rule and the permanent rule.
5.
Estimate of the amount of time that state employees will spend developing the rule and of other resources necessary to develop the rule:
10
h
ours.
6.
List with description of all entities that may be affected by the proposed rule:
WTCS institutions desiring to issue student identification cards acceptable for voting purposes will be affected by this rule. All students at a WTCS institution also will be affected by this rule as well as Wisconsin’s 1,
852
municipal clerks responsible for administering elections and approximately 25,000 poll workers who staff voting locations on Election Day. The impact of the rule will be on town, village and city government. The rule does not impact businesses, private economic sectors or public utility ratepayers.
7.
Summary and preliminary comparison with any existing or proposed federal regulation that is intended to address the activities to be regulated by the proposed rule:
The 2002 federal Help America Vote Act (HAVA), 42 USC
§
15301 et seq., contains a provision requiring states to receive identification from individuals who register to vote for the first time, by mail. HAVA
§
303 (b
)(
2)(A)(
i
)(I). That requirement is a voter registration requirement and is a more general requirement than the state identification requirement for receiving a ballot. The federal requirement simply refers to “current and valid photo identification.” The federal requirement does not delineate specific types of photo identification as does the Wisconsin statute.
8.
Anticipated economic impact of implementing the rule (note if the rule is likely to have a significant economic impact on small businesses):
The rule will have minimal or no impact on the governmental entities impacted by the rule. Municipal clerks and poll workers will be provided with informational and training materials on the acceptable forms of identification for voting. This rule merely
clarifies that WTCS
student identification cards are an “unexpired identification card issued by a university or college in this state that is accredited, as defined in s.
39.90
(1
)
[
.]”
Wis. Stat.
s.
5.02
(6m)
(f)
.
The
rule will eliminate possible confusion if a voter offers a technical college student identification card when appearing at the polling place to vote.
This rule will not have an impact on small businesses.
Contact person:
Matthew W.
Giesfeldt
