MADISON, Wis. — Wisconsin labor officials can withhold voters’ names while union elections are underway to guard against possible intimidation and harassment, the state Supreme Court ruled Tuesday.
Protecting voters from intimidation, harassment and coercion outweighs the public interest in disclosing the names before the elections conclude, the court said in a 5-2 decision. The ruling reverses a decision by Dane County Circuit Judge Peter Anderson, who found the Wisconsin Employment Relations Commission should have turned over voter names to Madison Teachers Inc., the Madison school district’s teachers union, during a 2015 recertification election.
“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,” Chief Justice Patience Roggensack wrote for the majority.
Susan Crawford, the union’s attorney, said the open records law clearly doesn’t allow voter names to remain secret and “the court is legislating from the bench.”
“The court is rewriting the public records law,” she said.
Republican Gov. Scott Walker’s signature law restricting public workers’ collective bargaining rights calls for public unions to hold annual re-certification elections. Fifty-one percent of all the employees in the union unit must vote “yes” for the unit to remain certified. An employee who doesn’t vote is therefore essentially a “no” vote.
WERC held the Madison teachers’ 2015 recertification vote over 20 days that November. According to court documents, the union filed open record requests twice during the election for names of people who had voted so far. Crawford said union officials wanted to know who hadn’t voted yet so they could encourage them to cast a ballot.
Commission Chairman James Scott denied both requests, saying he was concerned about violating a secret ballot and avoiding possible voter coercion while the election was ongoing. According to the documents, he was aware that the Racine school district had filed a complaint with WERC about three voters being harassed during re-certification elections a year earlier. The complaint was ultimately dismissed because it wouldn’t have changed the election’s outcome.
Scott released the voters’ names after the election but MTI officials sued, saying they should have gotten the names during the election and Scott violated the open records law. Peterson, the Dane County judge, agreed and awarded the union nearly $42,000 in damages, fees and costs.
But Roggensack wrote that the major purpose of a secret ballot is to protect voters and intimidation was a concern in the Madison teachers’ election, citing the Racine complaint.
“The public has a significant interest in fair elections, where votes are freely cast without voter intimidation or coercion,” Roggensack wrote. “Scott’s denial of MTI’s requests for voter names during the course of the certification election evidences the lawful balance of public interests presented here.”
Anne Walsh Bradley and Shirley Abrahamson, the high court’s only liberal-leaning justices, dissented. Bradley wrote that fears of intimidation were speculative and based on one uninvestigated complaint in a different election.
The ruling marks the third time in three years the majority has undermined the open records law, Bradley lamented. She noted the court in 2016 found that the state Democratic Party wasn’t entitled to videos of Republican Attorney General Brad Schimel’s attorney training sessions and last year ruled that immigrant rights group Voces de La Frontera wasn’t entitled to unredacted versions of Milwaukee County Sheriff’s Department immigration detainer forms.
Crawford insinuated that the court’s conservative majority is out to stymie liberal groups.
“It’s interesting to me that those three cases involve first the Democratic Party of Wisconsin, second a group of immigrants and third a public union,” she said. “The court seems to be making these determinations based on who is requesting the records.”