State can delay records release to unions
Court says voters’ voice needs to be ‘unintimidated’
MADISON – The Wisconsin Supreme Court ruled Tuesday that a state official could take longer than usual to release public records about union elections to combat the threat of voter intimidation in those elections.
The 5-2 ruling was a blow to unions and advocates of the open records law, which ordinarily requires documents to be released “as soon as practicable and without delay.”
In the majority opinion, Chief Justice Patience Roggensack determined that making sure that union elections were properly run outweighed the need to promptly release records.
“Each individual voter has a fundamental right to cast his or her vote without intimidation or coercion,” she wrote for conservatives on the court.
In dissent, Justice Ann Walsh Bradley countered that the possibility of voter intimidation was hypothetical.
“The majority undermines the presumption of open access to public records by imputing an unsupported and nefarious purpose to the records requests based on nonexistent facts,” she wrote.
The case centered on how quickly the Wisconsin Employment Relations Commission was required to provide records to a Madison teachers union.
Under the 2011 labor law known as Act 10, most publicsector unions must hold annual elections to determine whether they can continue to bargain for raises.
The unions must win support from 51% of all eligible members, not just those who cast votes. In effect, if someone doesn’t cast a ballot, it counts as a “no” vote.
As a result, union officials want to track voting patterns closely to make sure all of their supporters cast ballots during the 20-day voting period. The elections are overseen by the employment commission, which is controlled by an appointee of GOP Gov. Scott Walker.
In November 2015, Madison Teachers Inc. sought documents under the open records law to find out who had voted at the midpoint of the voting period. The commission denied the request at that stage. After the union overwhelmingly won the election, the commission released records showing who had voted.
The commission maintained it could not release the records while the election was pending because doing so could result in voter coercion.
The union said it would not engage in voter intimidation but wanted the information while the election was ongoing so it could target its get-out-the-vote efforts to those who had not voted.
The union sued over the timing of the release of the records. Dane County Circuit Judge Peter Anderson ruled in the union’s favor in 2016.
The employment commission appealed and the state Supreme Court agreed to hear the case without having an appeals court first issue a decision.
Tuesday’s decision by the court’s conservatives overturned the lower court ruling.
In the majority opinion, Roggensack emphasized the importance of casting ballots in secret to reduce the risk of voter intimidation.
In doing so, she used the term “unintimidated” — a campaign phrase for Walker and the title of his book about his battle to pass Act 10.
“Under current law, one of the primary goals of certification elections is to give employees an unintimidated voice in deciding who, if anyone, will be their representative,” Roggensack wrote.
Roggensack was joined by Justices Rebecca Bradley, Michael Gableman, Daniel Kelly and Annette Ziegler.
In dissent, Ann Bradley called Roggensack’s opinion speculative because there was no evidence of attempts to intimidate union voters in Madison. The “mere possibility” of voter intimidation is not enough to override the open records law’s requirement that records be made public quickly, she wrote.
Justice Shirley Abrahamson joined the dissent.
Ann Bradley and Rebecca Bradley are not related.