February 6, 2018

"The Wisconsin Supreme Court... said Tuesday that a state agency that oversees public employee union recertification elections can delay the release of voter records to prevent voter intimidation."

The Wisconsin State Journal reports.
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 requestors when determining whether to release records....

But the court's majority, led by Chief Justice Patience Roggensack, said ... "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."...

In a dissenting opinion, Justice Ann Walsh Bradley, joined by Justice Shirley Abrahamson [wrote] "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."


David said...

"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."

And if it involved a substantiated and investigated complaint they would rule differently? I do not think so.

Government can't act to prevent abuse, but must wait until the abuse has already occurred?

Bill, Republic of Texas said...

Roggansack, Bradley, Abrahamson. Names are a blast from the past. It was a 5-2 decision. Did the left lose a judge?

jrapdx said...

What are the odds the teachers union would indeed harass those who didn't vote? The court's ruling seems to reflect a reality that the union would do exactly that. No wonder the union is miffed as their power to intimidate is taken away. Couldn't happen to a more obvious group of thugs.

Etienne said...

They yay and nay counts are more important than the who. As a matter of fact, the who should never be public information.

Curious George said...

"Bill, Republic of Texas said...
Roggansack, Bradley, Abrahamson. Names are a blast from the past. It was a 5-2 decision. Did the left lose a judge?"

Yep. Only lefties are Bradley and Abrahamson. And Abrahamson is like 120, so Any. Day. Now.

Curious George said...

"Hey nice teaching gig. Shame if something happened to it."

Bay Area Guy said...

Shirley, you must be joking...

DKWalser said...

I used to be in favor of full disclosure of political contributions rather than arbitrary campaign contribution limits. The theory I supported was that we could see who was supporting a particular candidate (or ballot measure), the amount of the contribution, and judge for ourselves how that support should affect our willingness to support/vote for the candidate or issue. Then came the California Prop 8, which won at the ballot box, but whose supporters lost their jobs as a result of the fact their political contributions made in support of the ballot measure were disclosed.

I was terribly naive. It never would have occurred to me to hound someone out of their job because I disagreed with their political views. That seemed unAmerican. (It still does.) It's proven to be typically leftist.

MadisonMan said...

Shirley Abrahamson is alive. Wow. (Goes to look)

Only 84 years young. Compared to Fred Risser she's a Spring Chicken still.

Unknown said...

Chief Justice Patience Roggensack. That name is straight out of The Onion.

FullMoon said...
This comment has been removed by the author.
Drago said...

Can't the dems in Wisconsin gin up another John Doe investigation to thug out any potential anti-union voters involved?

Perhaps a "dossier" could be procured with some incredible details about those republicans which could be used as a basis for "wiretaps" and deeper investigation.

David-2 said...

Is this another example where the best solution, of course, would not be based on some Wisconsin Supreme Court ruling but on simple trust?

Anonymous said...

Loved reading that article. Especially these two paragraphs:

"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."

[Bill Lueders, president of the Wisconsin Freedom of Information Council] 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.

1: The unions are demanding information about who has and hasn't voted, DURING the election process. The only reason to ask for that information is so they can go to people who haven't yet voted (in a situation where "not voting" == "a no vote"), and pressure them into voting. My read of the article is that they can get the information about who did and didn't vote, but only AFTER the election is over.

IOW, they can get the information, they just can't use it to bully voters.

The ruling is obviously correct

2: The MacIver Institute is investigating fraud. In particular, it's looking into which public employees lobbied against Act 10 during their work hours, on the public dime. The situation is in NO way like the Union election situation, as they're not requesting the information while the lobbying and voting is going on, but after the fact.

So, contrary to Bill Lueders' lies, the ruling runs entirely in synch with the appeals court ruling

Anonymous said...

From the opinion: ( https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=208100 not sure the link will be good that long)

One week prior to the start of the certification
election, MTI wrote to Scott stating that it intended to submit
requests pursuant to Wis. Stat. § 19.35(1) for records of the
names of the School District's employees who had voted at
specific points during the election. MTI wrote that it
"wish[ed] to assure you that MTI will not engage in voter
coercion or any other illegal election practices during the
upcoming election. MTI is fully committed to exercising its
First Amendment and statutory rights within the law."

On November 10, 2015, MTI submitted the first of its
requests, seeking names of employees, by bargaining unit, who
had voted as of that date. MTI requested that the records be
delivered "as soon as possible, but not later than 5:00 p.m.,
November 16." On November 16, 2015, Scott advised MTI in
writing that its request was denied for three reasons: first,
because WERC utilized the Association, a third-party vendor to
collect votes, the Commission did not possess the requested
documents; second, because the annual certification election is
conducted by secret ballot, disclosure of the names of employees
who had voted would violate the secrecy of the ballot; and
third, because the common law balancing test weighed in favor of
"maintaining the secrecy of the ballot and of avoiding the
potential for voter coercion while balloting is ongoing . . . ."
Scott was aware of a complaint submitted to WERC by the Racine
Unified School District, alleging that voters had been coerced
and harassed into voting during the 2014 annual certification


The election ended at noon on November 24, 2015. At
3:26 p.m. on that day, MTI submitted a third request to WERC,
requesting names of all employees who had voted in the
certification election. WERC provided those names, by
bargaining unit, at 12:37 p.m. the following day, November 25.
Scott concluded that the public interest in maintaining openness
of public records was satisfied by disclosing the requested
lists immediately after the elections were over.

From a footnote:
An affidavit subsequently filed in this action revealed
that Scott was aware that the Racine Unified School District had
filed a complaint alleging union representatives had approached
three teachers, asked if they had voted in the certification
election, and urged them to vote immediately in the
representative's presence using the representative's laptop.
The complaint was dismissed without investigation because the
conduct, even if substantiated, would not have affected the
outcome of the election.

All the requested information was given to the union, as soon as the union couldn't use the information to bully voters during an election.

Mark well anyone who objects to this ruling, because those people don't care about Open records, they care about pro-Gov't-Union

Anonymous said...

The opinion quotes from US Supreme Court ruling Burson v. Freeman, 504 U.S. 191, 206 (1992), which is funny, because there's a case out of MN that may lead to Burson being modified / overturned ( http://www.scotusblog.com/case-files/cases/minnesota-voters-alliance-v-mansky/ )

However, it's a good quote:
The Court concluded by explaining that the contest over Tennessee's election regulation involved "the exercise of free speech rights [in] conflict[] with another fundamental right, the right to cast a ballot in an election free from the taint of intimidation and fraud." Id. at 211. On balance, the Court said that removing the opportunity for intimidation of voters must prevail.

Anonymous said...

And here's the money quote from this ruling (go back and read the linked article, note none of this is addressed there):

MTI contends that because voting was ongoing, those
who had not yet voted could not be treated as a firm "no" vote
and, therefore, the lists of those who had voted would not
violate the secrecy of the ballot by revealing the votes of
anyone. MTI's argument misses the point of why disclosure of
the names of those who had voted affects the important public
interest that underlies the use of secret ballots.

Let us explain. Throughout the election, MTI remained
free to provide truthful information to all members of the
bargaining unit that bore on the advisability of electing MTI as
the exclusive representative. However, giving MTI lists of
employees who had voted at various dates before the election
process was concluded, through simple deletion of voter names
from the list of all members of a bargaining unit, also would
give MTI names of all who had not voted by those dates. Those
non-voting employees could then become individual targets of
MTI's most forceful efforts because if they did not vote by the
conclusion of the election, MTI may have been unable to secure
"yes" votes from 51 percent of the members in the bargaining
unit and thereby fail in its certification efforts.

When elections are conducted over a period of time and
voting occurs in many locations, there is no physical boundary
by which voter intimidation can be regulated as there was in
Burson. Therefore, preventing voter intimidation during
elections conducted by phone and email, as occurred here, is
challenging. 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.

As the history underlying the use of secret ballots
teaches, a major purpose of secret ballots is to protect "the
fundamental right" to cast votes in elections that are "free
from the taint of intimidation." Burson, 504 U.S. at 211.
While Burson did not involve a statutory right to vote in
certification elections as is presented here, the public
interest in certification elections that are free from
intimidation and coercion is evidenced by the requirement that
those elections be conducted by secret ballot and free from
prohibited practices. Wis. Stat. §§ 111.70(1)(e) and

Intimidation in the WERC certification election was a
concern. Scott had received detailed and specific complaints of
past coercion in other certification elections.
9 Complaints
included: a union representative directing an employee to a
computer and coercing her to vote for recertification; another
employee being repeatedly asked whether she had voted; and a
third employee witnessing employees being similarly pressured to

Each individual voter has a fundamental right to cast
his or her vote without intimidation or coercion. WERC is
charged with conducting fair and accurate annual certification
elections, free from the taint of voter intimidation. The
public has a significant interest in fair elections, where votes
are freely cast without voter intimidation or coercion.
Accordingly, the public interest in elections that are free from
intimidation and coercion outweighs the public interest in favor
of open public records under the circumstances presented in the
case before us. 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.

cubanbob said...

another example of why a National Right To Work Act is needed.

Michelle Dulak Thomson said...

This is so odd. I leapt immediately to the conclusion that it was union voters who would be "intimidated." Whereas, of course, it was people who didn't vote for the union who would be. Because "don't you want your cushy job?" sounds different coming from your everyday co-worker than from your union rep, who is determined to know exactly how you voted, if you did vote. And if you didn't vote, she'll know that, too. Because there are things off limits to most of us, but not to union reps.