The Wisconsin Supreme Court, deciding along ideological lines, said Tuesday that a state agency that oversees public employee union recertification elections can delay the release of voter records to prevent voter intimidation.
Government openness advocates warned that the ruling could have a broad impact on the public’s right to know how its government works because it allows records custodians to consider the perceived motivations of requesters when determining whether to release records.
The court’s 5-2 decision overturns a ruling in Dane County Circuit Court that favored Madison Teachers Inc.
MTI sued the Wisconsin Employment Relations Commission, which in 2015 denied MTI’s requests for lists of teachers who did and did not vote in the annual union recertification election. MTI had sought the records under the state’s open records law, but WERC denied the release of the records during the election because it feared that MTI would use that information to intimidate voters who had not yet voted.
Unions must get 51 percent of eligible members to vote “yes” during the annual votes in order to recertify their union. Non-votes by eligible members are counted as “no” votes under state law.
Despite concerns from open records advocates, the court’s majority, led by Chief Justice Patience Roggensack, said it narrowly tailored the ruling to apply only to this situation.
“The public interest in elections that are free from intimidation and coercion outweighs the public interest in favor of open records,” Roggensack wrote, “under the circumstances presented in the case before us.”
She added that the public interest in elections free from voter intimidation, weighed against the public interest in the openness of public records, was the only issue presented in WERC’s appeal.
But Susan Crawford, lawyer for MTI, said the ruling will have far-reaching implications beyond MTI’s case, creating an exception to the public records law that could have an impact on recertification elections across Wisconsin, leaving unions with no practical way to monitor recertification elections.
She said that it’s up to the state Legislature, not the Supreme Court, to re-write the state’s open records law if it feels that’s necessary.
Roggensack wrote that WERC Commissioner James Scott properly balanced the considerations of the state’s open records law with concerns about voter intimidation before deciding not to release voter records during the election.
“Preventing voter intimidation during elections conducted by phone and email, as occurred here, is challenging,” Roggensack wrote. “Given MTI’s repeated requests for the names of those who voted before the election concluded, it is entirely possible that those employees who had not yet voted would become subject to individualized pressure by MTI of a type that MTI could not exert when speaking to all members of the bargaining unit collectively.”
In a dissenting opinion, Justice Ann Walsh Bradley, joined by Justice Shirley Abrahamson, called the majority’s lip service to the state’s open records law “all hat and no cattle.” She said it was the third decision in three years in which the court has undermined the open records law, this time “by imputing an unsupported and nefarious purpose to the records requests based on nonexistent facts.”
“Neither the majority nor the records custodian points to any evidence of voter intimidation or coercion by MTI in this recertification election,” Bradley wrote. “Rather, this concocted concern is based solely on one uninvestigated and unsubstantiated complaint from Racine County, involving a different union, in a different election, in a different year, that did not involve a public records request.”
Bill Lueders, president of the Wisconsin Freedom of Information Council, agreed, noting it’s the third recent Supreme Court ruling that has relied on questionable reasoning to block the release of public records.
“It’s another ruling where the court has allowed unsubstantiated speculation about possible negative consequences to block the release of records,” Lueders said. He said the ruling is “certainly disappointing.”
He noted that the ruling runs counter to an earlier state appellate court decision in which the court ordered state Sen. Jon Erpenbach, D-Middleton, to release records requested by the conservative MacIver Institute, despite Erpenbach’s argument that doing so could lead to harassment.
“The court said ‘tough cookies,’” Lueders said.
Crawford said she believes that the court makes its decisions in these cases “based on who is making the request for records, and that’s not the way the law is supposed to work.”
State Department of Justice spokesman Johnny Koremenos said that the court did not create any new law or narrow the open records law, but merely applied a balancing test. He said that Attorney General Brad Schimel supports and applies the open records law on a daily basis, but also “vigorously defends Wisconsinites’ fundamental constitutional rights.”
“While the public’s interest in open records is significant, that interest must in some cases give way to other interests,” Koremenos said. “Here, the court found that the fundamental right to vote, and to cast a secret ballot, allowed WERC to delay the production of a certain category of public records.”