June 2, 2023 – A ballot question for a constitutional amendment complies with Section XII, Article 1 of the Wisconsin Constitution if it fairly describes the actual question and is not counterfactual to the amendment itself, the Wisconsin Supreme Court has ruled.
In Wisconsin Justice Initiative, Inc. v. Wisconsin Elections Commission, 2023 WI 38 (May 16, 2022), the supreme court held that the statewide ballot question concerning victims’ rights – known as Marsy’s Law – which led to a constitutional amendment in 2020, was not required to describe every essential of the proposed amendment.
Voters Approve Masry’s Law
In the April 2020 election, Wisconsin voters overwhelmingly approved a victims’ rights ballot measure, known as Marsy’s Law) that made multiple amendments to Article 1, Section 9m of the Wisconsin Constitution.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
A few months before the election, the Wisconsin Justice Initiative, Inc. (WJI) sued the Wisconsin Elections Commission (WEC) in Dane County Circuit Court, claiming that the ballot measure question didn’t meet several requirements specified in the state constitution.
After the election, the circuit court determined that the ballot measure question didn’t comply with constitutional requirements. WEC appealed, and the Wisconsin Court of Appeals certified the appeal to the supreme court.
‘Every Essential Element’ is not the Test
Before the supreme court, WJI argued that the ballot question didn’t meet the requirements of Article XII, Section 1 of the state constitution.
Specifically, WJI argued that: 1) the ballot measure was not submitted to the people in a manner prescribed by the legislature, because the ballot question didn’t describe “every essential” of the amendment and was therefore misleading; and 2) the ballot measure made more than one amendment and voters should have been allowed to vote up or down on each amendment.
Justice Hagedorn began his majority opinion by explaining that in State ex rel Ekern v. Zimmerman, 187 Wis. 180, 204 N.W. 803 (1925), the supreme court stated that the form of a ballot question – even if prescribed by statute – “must reasonably comprise or have reference to every essential of the amendment.”
But that statement, Hagedorn reasoned, did not create a new constitutional test for the judicial review of ballot questions, in large part because the issue in Ekern was whether the legislature complied with Article XII, Section 1 when it delegated the drafting of a ballot question to the secretary of state.
“The relevant discussion in Ekern simply does not set forth a substantive, explainable ‘every essential’ test at all,” Justice Hagedorn wrote. “And why would it? The content of the ballot question was not challenged and was not at issue. There was no need to create, much less apply, a new substantive constitutional test.”
Inaccuracy Is the Test
Citing State ex rel Thomson v. Zimmerman, 264 Wis. 644, 60 N.W.2d 416 (1953), Justice Hagedorn wrote that a ballot question violates Article XII, Section 1 only where it “fails to present the real question or is contrary to the amendment itself.”
“A ballot question could violate this constitutional requirement only in the rare circumstance that the question is fundamentally counterfactual such that voters were not asked to approve the actual amendment,” Hagedorn wrote.
Applying that test to Marsy’s Law, Justice Hagedorn concluded that the ballot question passed constitutional muster.
WJI argued that the ballot question didn’t mention that the proposed constitutional amendment would create a definition of “victim” in the constitution.
But Justice Hagedorn wrote that such a definition “fits comfortably within the [ballot] statement that crime victims are given certain or additional rights … Nothing here is fundamentally counterfactual such that voters were not asked to approve the actual amendment.”
WJI also argued that the ballot question failed to accurately describe how the rights to criminal defendants would change under the proposed amendment.
The ballot question stated that “the rights of crime victims will be protected with equal force to the protections afforded the accused,” while the amendment specified that victims’ rights would “be protected by law in a manner no less vigorous than the protections afforded to the accused.”
But the differences in those two statements were insignificant given the deference due to the legislature in writing an explanation of the ballot measure, Hagedorn reasoned.
“Minor deficiencies in a summary (and all summaries will, by necessity, be incomplete) do not give rise to the kind of bait-and-switch we struck down in Thomson,” Hagedorn wrote.
Not Multiple Amendments
WJI also argued that Article XII, Section 1 required Marsy’s Law to be submitted to the voters as separate amendments.
But Justice Hagedorn concluded that the amendments made by Marsy’s Law related to and were connected with the purpose of broadening victims’ rights, and as such were not required to be submitted as separate ballot measures.
Dallet Concurrence: Couterfactual Test is Too Narrow
In her concurrence, Justice Dallet argued the counterfactual test employed by the majority was too narrow.
“Although the majority is certainly correct that a ‘fundamentally counterfactual’ ballot question doesn’t comply with the constitution, that’s not the only way to violate the requirement that an amendment be submitted to the people,” Dallet wrote.
What the Ekern court meant by using the phrase “every essential,” Justice Dallet wrote, was that a ballot question “must accurately summarize the significant changes that a proposed amendment would make to the Constitution.”
R.G Bradley Concurrence: ‘Every Essential’ Test Usurps Legislature
In her concurrence, Justice R.G. Bradley argued that the “every essential” test violates the principles of the political question doctrine.
R.G. Bradley did so largely by criticizing Justice Dallet’s dissent.
“Her view invites judicial overreach because it is based on the rule of judges rather than the rule of law,” Justice R.G. Bradley wrote.
“This court would become the final arbiter of every proposed constitutional amendment, without any express grant of constitutional authority to second guess the legislature’s work.”
Dissent: Unwise to Abandon ‘Every Essential’ Test
In her dissent, Justice A.W. Bradley criticized the majority for its “hasty” abandonment of Ekern’s “every essential” test.
“By dismissing the ‘every essential’ test … the majority is able to avoid an exacting stare decisis analysis in order to determine if it should be overruled,” A.W Bradley wrote.
Justice A.W. Bradley argued that Marsy’s Law both violated the “every essential” test and contained multiple amendments.
“It can be a difficult exercise to distill a complex and multi-faceted constitutional amendment down to a simple description that will fit on the ballot, yet still informs voters of the true nature of the question,” Justice A.W. Bradley wrote. “Nevertheless, the ballot question is the only text that voters are guaranteed to see.”