Kaul finds constitutional amendment doesn’t block private vendors helping with elections

Attorney General Josh Kaul speaks with reporters outside the Wisconsin Supreme Court in February 2023. (Wisconsin Examiner photo)

Wisconsin Attorney General Josh Kaul issued a formal opinion Tuesday, finding that a constitutional amendment approved by voters in April that forbids non-election officials from performing election related work does not prevent local election clerks from hiring private vendors for tasks such as printing ballots. 

The formal opinion had been requested by Dane County Corporation Counsel Carlos Pabellón, who said that clerks need more information to figure out how to interpret the new law, which states “only election officials designated by law may perform tasks in the conduct of primaries, elections, and referendums.”

“While the amendment … seems simple and straightforward on its face, it is not so in application,” Pabellón wrote in a letter requesting the opinion. “Who is an ‘election official designated by law’ is not clearly defined in the Wisconsin Statutes. Likewise, what constitutes a ‘task’ in the conduct of primaries, elections and referendums is not defined.” 

Pabellón wrote that there are a number of examples in which people not employed by the municipal clerk perform crucial election work. 

“There are many ‘tasks’ that are collaterally related to elections,” he wrote. “Most counties contract with commercial printers to produce ballots. Municipal and county IT departments assist in maintaining the security of the software and hardware protecting the election technology such as the voter registration system and results tabulated by electronic voting equipment. The vendor of the election systems provides technical guidance regarding operation and maintenance. Municipal clerks often rely upon local law enforcement to transport sealed ballots and election materials to the county clerk and upon other municipal employees to temporarily assist with absentee ballot mailings or other election preparation activities.” 

Conservative groups had objected to Pabellón’s request, saying the amendment wasn’t complicated. The amendment was authored by Republicans in the Legislature because of the belief that outside employees of a non-profit that provided grant funding for election-related costs were too involved in election administration during the 2020 election in Green Bay. 

Yet election officials had also raised questions about the law’s interpretation. Members of the Wisconsin Elections Commission said at a meeting in May that they were receiving questions from clerks and were unsure what to tell them. 

In his opinion, Kaul found that the measure was written in response to the Green Bay case and only refers to “directing or leading the administration of an election.” 

“I conclude that ‘election official’ has the same meaning in the new constitutional provision as it has in the statutes, and that a ‘task in the conduct of any primary, election, or referendum’ refers to work in directing or leading the administration of an election,” Kaul wrote. “The legislative record shows that the provision was proposed in response to the perception that a local election official had lost control of the oversight of an election. Article III, section 7(2) does not apply to more ordinary circumstances in which an election official works with or is assisted by non-election officials in ensuring the proper administration of an election, such as work with vendors on the layout and printing of ballots, information technology personnel on software and hardware security, law enforcement personnel on ballot transport, or employees or volunteers assisting with mailings or other clerical work.”

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