In Wisconsin, legislatively referred constitutional amendments are the only available form of statewide direct democracy. A legislatively referred amendment must be approved by two consecutive sessions of the legislature and then submitted to the voters in the time and manner prescribed by the legislature. The proposed amendment must be filed with the agency responsible for preparing ballots no later than 70 days before the election. Wisconsin citizens are provided information about the referendum through a series of notices published by the clerks responsible for running the election. Wisconsin law provides no explicit avenue of judicial review for ballot questions, but actions for declaratory and/or injunctive relief may be available. The standard of review is deferential: Pursuant to a 2023 decision by the Wisconsin Supreme Court, ballot language is sufficient if it is not “fundamentally counterfactual[.]” See Wis. Just. Initiative, Inc. v. Wis. Elections Comm’n, 2023 WI 38, ¶ 5, 407 Wis. 2d 87, 990 N.W.2d 122. In addition to legislatively referred amendments, the Wisconsin Constitution also requires voter approval of statutes that extend the right of suffrage to additional classes.
BACKGROUND INFORMATION
What forms of direct democracy are available, and when?
Statewide Ballot Measures in Wisconsin
Wisconsin does not have statewide initiatives or veto referendums but has legislatively referred amendments. Additionally, the Wisconsin Constitution also requires voter approval of statutes that extend the right of suffrage to additional classes.
X Initiatives – Statutory
X Initiatives – Constitutional
X Veto Referendums
√ Legislatively Referred Amendments
An amendment to the state constitution proposed by the legislature must be approved by Wisconsin voters. Wis. Const. art. XII, § 1. In addition, laws “extending the right of suffrage to additional classes” must be ratified “by the people at a general election.” Wis. Const. art. III, § 2.
Election Timing
A legislatively referred amendment must be approved by two consecutive sessions of the legislature and is then submitted “to the people in such manner and at such time as the legislature shall prescribe.” See Wis. Const. art. XII, § 1.
Once approved in the first legislative session, the proposed amendment “shall be published for three months” before the next legislative election is held. Wis. Const. art. XII, § 1. After the second legislature’s approval, the amendment must be “filed with the official or agency responsible for preparing the ballots for the election no later than 70 days prior to the election.” Wis. Stat. § 8.37.
BALLOT PREPARATION
What is included on the ballot, and who prepares it?
The ballot for any proposed constitutional amendment in Wisconsin must display the following:
- A concise statement of the question, prepared by the legislature, and “worded such that an affirmative vote will be in favor of the measure and a negative vote will vote against it.” Wis. Stat. §§ 5.64(2)(am), 13.175; Wis. Const. art. XII, § 1.
- If more than one amendment is proposed, each must appear separately to allow voters to vote for or against each. Wis. Const. art. XII, § 1.
INFORMATION TO VOTERS
What information is provided to voters before the election, and how?
Publication
Five types of election notices are produced by municipal and county clerks responsible for the election using forms prescribed by the Wisconsin Elections Commission. Wis. Stat. § 10.01(2). When an election includes a proposed constitutional amendment, several of those notices provide information about the proposal: including a notice of election and a notice providing instructions and a sample ballot. Wis. Stat. §§ 10.01(2)(a)-(b), 10.02. In addition, the Attorney General prepares a “notice of referendum,” which contains the referendum date, the entire text of the question and proposed enactment, and an explanatory statement of a “yes” or “no” vote. Wis. Stat. § 10.01(2)(c). The notice is published in a newspaper “as close as possible” to the Type B notice. Id.
When a proposed constitutional amendment is approved for the first time by the legislature, its text is published by the Legislative Reference Bureau on the internet no later than the August 1 preceding a general election. Wis. Stat. § 35.07.
Voter Information Pamphlet
Wisconsin law does not require a state voter information pamphlet for ballot measures. However, as noted above, the Attorney General is charged with preparing a notice of the referendum, which includes an explanatory statement as the effect of a vote.
JUDICIAL REVIEW
When and how can the court step in?
Wisconsin’s provisions governing legislatively referred amendments do not explicitly provide for judicial review of ballot language or related materials, but review may be available under other channels, such as actions for declaratory and/or injunctive relief.
Sample case: Wis. Just. Initiative, Inc. v. Wis. Elections Comm’n, 2023 WI 38, 407 Wis. 2d 87, 990 N.W.2d 122 (holding that a proposed amendment must accomplish “one general purpose” pursuant to the state’s single amendment requirement, and that ballot language must not be “fundamentally counterfactual such that voters [are] not asked to approve the actual amendment.”).