Briefs from the Legislative Reference Bureau

Brief 12−1 April 2012

INITIATIVE, REFERENDUM, AND RECALL IN WISCONSIN INTRODUCTION government bodies) may submit petitions This brief summarizes the laws relating to proposing legislation. the initiative, referendum, and recall in While Section 9.20, Wisconsin Statutes, is Wisconsin. titled “Direct legislation,” the initiative Unlike many states, Wisconsin does not process in Wisconsin cities and villages is have a statewide initiative process, but actually an indirect form. A direct initiative residents of cities and villages may initiate process enables a measure to be placed directly legislation by petition. In addition, statewide on the ballot if a sufficient number of and local referenda are required in numerous signatures are gathered on petitions, thus circumstances. The state legislature or any enabling citizens to bypass the legislative city, village, or county may also enact a law or body completely and avoid any threat of an ordinance contingent upon approval at a executive veto. referendum. The state legislature or these local In contrast, under the indirect initiative governing bodies may, at their discretion, process available to residents of Wisconsin submit questions to the voters in the form of cities and villages, electors may propose, via advisory referenda. petition, that the city common council or Citizens may use the recall process to village board pass a desired ordinance or remove almost any statewide or local resolution without amendment. In addition, s. government elective official. As with an 66.0101 (6) permits electors to initiate the initiative, the recall process is started via enactment, amendment, or repeal of city or petition. If enough valid signatures are village charter ordinances, using the gathered, then an election is held to decide procedures provided in s. 9.20. In either case, whether an elective official will remain in if the council or board fails to enact the office or if not, who will replace the official for measure within 30 days, the question appears the remainder of the term. on a referendum ballot for the voters to decide the issue. 1. INITIATIVE Petition Requirements. The initiative The American system of government is process begins with the circulation of based on representative democracy, in which petitions. Once begun, proponents have 60 the people elect individuals to make the laws days to gather a number of valid signatures of under which we live. In contrast, the initiative qualified city or village electors (generally, is an example of direct democracy, in which the legal residents of voting age who are U.S. people may petition to require that a proposed citizens) equal to at least 15% of the votes cast law or resolution be put to a vote in a for governor in that municipality at the last referendum election. gubernatorial election. Initiative in Cities and Villages. 1989 Wisconsin Act 192 established a Wisconsin law does not provide for a uniform petition format for all referenda, statewide initiative process. However, including city and village initiatives. Form residents of cities and villages (but not GAB-172, “Petition for Direct Legislation,” is counties, towns, school districts, or other local available on the Wisconsin Government

Prepared by Dan Ritsche, Senior Legislative Analyst Reference Desk: (608) 266-0341 Web Site: www.legis.wisconsin.gov/lrb − 2 − LRB−12−WB−1

Accountability Board’s (GAB) Web site at: be notified if there are problems with the http://gab.wi.gov/forms/gab−172. petitions. Section 8.40 requires that the word The GAB has prescribed rules regarding “PETITION” must appear in boldface print at the standards by which election officials and the top of each separate petition sheet. Those governing bodies must judge the validity of signing the petition must indicate their petitions (Chapter GAB 2, Wisconsin municipality of residence for voting purposes, Administrative Code, titled “Elections Related their street address, and the date on which they Petitions”). Clerks must list any signed. insufficiencies they find in a signed and dated A certification containing the signature certificate attached to the petition, and the and address of the person who circulated the designated individual is notified and given 10 petition must appear at the bottom of each days to correct any problems. When petition page. It must state that: everything is in order, the clerk immediately S The petition circulator personally obtained forwards the proposal and the verified each of the signatures. petitions to the city council or village board. S The circulator knows that each person who The city council or village board has 30 signed is a qualified elector of the days from receipt of the petition to either pass municipality. the proposal in unaltered form or put it on the S Each signer did so with full knowledge of ballot at the next spring or general election, if the content and purpose of the petition. it is more than six weeks after the expiration of S The circulator knows that each signer the 30-day period. If the next election indicated the correct residence address. scheduled is in less than six weeks, the S Each signer signed on the date indicated. referendum is delayed until the next spring or general election, unless the council or board S The circulator is a qualified elector of this state, or if not a qualified elector of this state, agrees by a three-fourths vote of the entire that the circulator is a U.S. citizen at least 18 elected membership of the body to order a years of age who, if he or she were a resident special election for purposes of voting on the of this state, would not be disqualified from proposal. (No more than one such special voting. election may be held in any six-month period.) S The circulator is aware that the penalties for Voting on the Referendum. It is not submitting a petition with a false necessary that the full wording of the certification are a fine of up to $10,000 or proposed ordinance or resolution be printed imprisonment not to exceed three years and on the ballot. If it is not, a concise statement of six months, or both. the nature of the proposal must appear. The Although it is not required by law, the wording of the ballot question must permit the GAB recommends that the complete text of the voter to clearly indicate approval or rejection proposal (or a summary of it) be printed on or by a straightforward “yes” or “no” vote. If the attached to each petition page. majority of those voting in the referendum Initiative Timetable. If enough favor the ordinance or resolution, it takes effect signatures are gathered in the 60-day period, on the date of its official publication, which the petitions are filed with the municipal clerk. must occur within 10 days after the election. Within 15 days after receipt of the petitions, the Repeals or Amendments to an Initiative. clerk rules on their sufficiency, including City legislation adopted via initiative cannot verifying that the correct number of signatures be vetoed by the mayor, and the city council or has been obtained and whether the proposal village board may not repeal or amend the law has been properly worded. An individual within two years of its adoption. Initiated must be designated in writing as the person to legislation may, however, be repealed or LRB−12−WB−1 − 3 −

amended anytime by a subsequent initiative submitting petitions signed by two-fifths of action. the legal electors of the county, in which case Limitations on Use of Municipal the county board must submit the question to Initiatives. A series of decisions by the the electors. [s. 59.05] Residents of adjoining Wisconsin Supreme Court have dealt with counties may similarly require an election on direct legislation. In particular, Landt v. the consolidation of 2 or more counties. [s. Wisconsin Dells, 30 Wis. 2d 470 (1966); Heider v. 59.08] Residents in counties having a Wauwatosa, 37 Wis. 2d 466 (1967); State ex rel. population of less than 500,000 may use the s. Althouse v. Madison, 79 Wis. 2d 97 (1977); and 9.20 initiative process to create or abolish the Mount Horeb Community Alert v. Village Board of office of elected county executive. [s. 59.17 (1)] Mt. Horeb, 263 Wis. 2d 544 (2003) have set limits Residents of an unincorporated area seeking on the use of this procedure. The court has annexation to an adjacent city or village may ruled that: initiate the action via petition and ratify it in a S Voters may exercise only such legislative referendum. [ss. 66.0203 and 66.0211] An powers as are conferred upon the city annexation of land to a city or village may be council or village board by the Wisconsin initiated by electors and property holders and Constitution or state statutes. ratified in a referendum. [s. 66.0217] S Direct legislation must relate to new History. The concept of direct democracy, legislation. It cannot be designed to amend in which the people make the laws which or repeal existing legislation that has been govern them, has ancient roots, going back at properly enacted by a city council or village least to the assemblies in Athens and the board. (This is not necessarily an absolute plebiscites in Rome. In the , prohibition because the supreme court has initiatives were promoted by the Populists and not specifically addressed the question of Progressives in the late 1800s and early 1900s incidental partial repeal or amendment that to facilitate government reform by bypassing may occur in the process of creating state legislatures. About half the states now affirmative legislation on a new subject.) have some form of a statewide initiative and S Direct legislation may not be used to require referendum process, with most states also the city council or village board to enact having provisions for initiatives at the local legislation that clearly conflicts with a prior government level. ordinance and would thereby constitute The evolution of the local initiative in implied recission. Wisconsin occurred over almost eight S Direct legislation is restricted to decades. The power to initiate ordinances and legislative-type actions (e.g., ordinances resolutions was granted to city residents by and resolutions) and is not applicable to Chapter 513, Laws of 1911. Charter ordinance executive, administrative, or judicial initiatives in cities and villages were actions. authorized by Chapter 198, Laws of 1925. 1989 S If it does not enact a direct legislative Wisconsin Act 273 gave electors in Wisconsin proposal, the city council or village board is villages the general initiative option. Counties obligated to put the question to a vote, even were originally included in the 1911 initiative if it feels the measure is invalid or vulnerable law, but the provisions for initiatives at the to being declared unconstitutional. county level were repealed by Chapter 177, Other Local Actions Initiated by Laws of 1943. There have been numerous bills Petitions. Residents of particular jurisdictions and resolutions over the years proposing to may prompt actions through the extend the initiative power to towns, to again initiative-petition process. Electors may authorize it in counties, and to institute a propose the relocation of a county seat by statewide process. − 4 − LRB−12−WB−1

2. REFERENDA Section 121.91 (3) provides that a school district may exceed the statutory property tax A referendum, broadly defined, is any revenue limits only upon approval by district vote of the people taken on a particular voters in a referendum. question. Referenda may be binding or The state legislature or any city council or advisory, and are required in some situations village or county board may choose to pass a and optional in others. However, the term law that will not take effect unless ratified by “referendum” is often used in reference to a the electors in a referendum. This is sometimes specific mechanism whereby the voters may, known as a “contingent” referendum. via petition, require that a law already enacted by a legislative body be put to a popular vote Advisory Referenda. The state to determine if the law will stand or be legislature or any city council or village or rejected. For example, in Wisconsin, a city county board may choose to submit questions council or village board may enact, amend, or to the electorate in referendum elections. The repeal by ordinance the city or village charter, results of an advisory referenda, while useful but such an ordinance may not take effect for in gauging the opinion of residents on a certain 60 days. Section 66.0101 (5) provides that, if a public policy topic, are not binding on the petition with sufficient signatures is filed legislative body and the legislative body is not within 60 days of passage of the ordinance, it required to take any action in response to the must be submitted to a referendum. The vote. petition must be signed by a number of 3. RECALL electors equal to not less than 7% of the votes cast for governor in the municipality in the last Recall is the procedure by which electors election. If a majority of those voting in the may submit petitions to require a special referendum reject the charter ordinance, it is election to remove an incumbent elective nullified. official from office. If an incumbent loses a Binding Referenda. Certain measures , the successful challenger serves must be submitted to referendum votes before the remainder of the current term of office. A they take effect. The most notable example is recall petition may be filed at any time after the amending the Wisconsin Constitution. As completion of the first year of office, but an provided by Article IV, Section 1 of that elective official may be subject to only one document, a proposal to amend the recall election during any particular term of constitution must first be passed in identical office. form by two consecutive sessions of the Recalls are authorized in Article XIII, legislature (known as “first consideration” Section 12, Wisconsin Constitution, and and “second consideration”). Then, in order to Section 9.10, Wisconsin Statutes. take effect, the amendment must be ratified by a majority of voters in a statewide ballot. WHO MAY BE RECALLED In a number of situations, state law A recall may be held for statewide requires local units of government to hold constitutional officers (governor, lieutenant referenda to ratify actions initiated by the governor, secretary of state, state treasurer, governing body. Most familiar are two related attorney general, and superintendent of public to school finances. Section 67.05 (6a) provides instruction); state legislators; district that bonding proposals for public school attorneys; members of the United States districts, including borrowing money to Congress; members of the judiciary (circuit finance school building construction, must be courts, court of appeals, supreme court); and submitted to a vote if the project exceeds elective officials of counties, cities, villages, specified amounts or if the bonding will cause towns, town sanitary districts, and school aggregate indebtedness to exceed a threshold. districts. However, it is not clear if the U.S. LRB−12−WB−1 − 5 −

Constitution permits the state recall of a PROCEDURAL REQUIREMENTS member of Congress. Initiation. Electors must, before Reasons for Recalls. The recall has often circulating recall petitions, register with the been used to remove from office those accused appropriate filing officer, such as the or convicted of official misconduct or criminal municipal, county, or district clerk, or the behavior. A recall petition for a city, village, Government Accountability Board in the case town, town sanitary district, or school district of statewide offices or legislators. There are no officer must contain a reason which is related campaign contribution limits on contributions to the official responsibilities of the official for made to officeholders who are the subject of whom removal is sought. No reason need be recall petitions before a recall election is called, provided for other offices. Chapter 44, Laws of but such limits are applicable to recall election 1933, contained a requirement that a statement candidates, including incumbent of the reason for the recall of constitutional officeholders, after a recall election is called. officers, judicial, legislative, or county officials Signatures. In general, petitions must be provided. In 1948, however, the Wisconsin contain valid signatures of electors equal to at Attorney General advised that this provision least 25% of the total votes cast for the office of was invalid for the reason that a later law could governor at the last election within the same not impose an obligation on the electorate district or territory as that of the officeholder which had been expressly omitted in the being recalled. Only qualified resident constitutional provision (37 OAG 91). electors of that district or territory may sign, 2011 Assembly Joint Resolution 63, a and they must indicate the date of signing and constitutional amendment introduced on first provide their address. consideration, proposed requiring that an Petition Time Limit. The last date that a elective official in Wisconsin may only be petition for recall of an officer may be filed is recalled if he or she has been charged with a 5:00 p.m. on the 60th day commencing after serious crime or if a finding of probable cause registration. All signatures must have been has been made that he or she violated the state dated within the petition gathering period. code of ethics. It also would have required that Review of Petitions. The statutes provide the applicable elections official determine, time frames for the filing officer to review the before a recall election is scheduled, that the petitions for sufficiency, and for challenges, petition demonstrates sufficient grounds for rebuttals, and court reviews. recalling the officer. AJR-63 passed the Setting the Election Date(s). When more Assembly on March 6, 2012, but failed to than two persons compete for a nonpartisan receive a vote in the Senate. office, a recall primary is held. The two Reasons for Recalls in Other States. persons receiving the highest number of votes Some states require that recalls be justified. in the primary appear on the recall ballot, For example, Minnesota’s constitution except that if any candidate receives a majority generally provides that statewide of votes in the primary, he or she automatically officeholders may be recalled only for serious assumes office for the remainder of the term. malfeasance in their performance of official For any partisan office, a primary is held for duties or conviction of a serious crime during each political party that is by law entitled to a the term of office. In addition, the supreme separate ballot and from which more than one court must certify that the facts alleged are true candidate files for the party’s nomination. and constitute sufficient grounds to warrant Unless he or she resigns, the incumbent’s recall. Specific reasons for recall of statewide name automatically appears on the ballot. The officers are required in eight states. recall election is held on the Tuesday of the 6th − 6 − LRB−12−WB−1

week commencing after the date that the filing Prior to 2011, four Wisconsin state officer finds that the recall petition is sufficient legislators have been subject to recall elections: except that if there is a primary, the recall S Senator Otto Mueller (R-Wausau) won a election is held on the Tuesday of the 4th week recall election in 1932. This effort was part commencing after the primary. If the of a Progressive Republican plan to recall incumbent prevails, the incumbent continues state legislators who opposed the tax bill to serve for the remainder of his or her term. submitted by Governor Philip La Follette. If the incumbent does not prevail, he or she S Representative James Holperin (D-Eagle continues to perform the duties of the office River) won a recall election in 1990. He had until the recall results are certified, after which angered some constituents by his support of the winner of the election serves for the a proposed 10-year state settlement of remainder of the term. Chippewa tribal hunting and spearfishing rights. HISTORY S Senator George Petak (R-Racine) lost his Like the initiative and referendum, the seat in a 1996 recall election after he had cast the deciding vote for a regional sales tax to recall is a product of the progressive pay for the Brewers’ Miller Park movement of the early 20th century. The recall professional baseball stadium. Democrat was first authorized in the U.S. in 1903 in Los Kim Plache won the election, which shifted Angeles, California. In 1908, Oregon became control of the state senate to the Democrats. the first state to apply the recall to elected state S Senator Gary George (D-Milwaukee) lost in officials. Nineteen states and the District of a Democratic Party recall primary election Columbia now provide for the recall of in 2003 to Spencer Coggs, who ran state-level officials. Recalls may be held in unopposed in the recall election. Senator local jurisdictions in at least 29 states. George had upset constituents in his The recall of city officials in Wisconsin was Democratic-leaning district by siding with suggested in the message of Governor Robert Republicans on several issues. M. La Follette to the Legislature in 1905, and 2011 Recalls. In 2011, nine state senators was authorized by Chapter 635, Laws of 1911. were the subjects of recall elections. The six The authorization to recall state, Republicans were primarily targeted as a congressional, judicial, legislative, and county result of their support for 2011 Wisconsin Act officials was created by an amendment to the 10, which substantially limited the collective Wisconsin Constitution ratified in 1926. The bargaining powers of state and local ability to recall officials of villages, towns, and government public employee unions, with the school districts was created by Chapter 403, exception of public safety employees such as Laws of 1977; district attorneys by 1989 police officers and firefighters. Act 10 also Wisconsin Act 31; and officials of town required that most public employees pay sanitary districts by 2007 Wisconsin Act 56. larger shares of the cost of their health Numerous local government officials insurance and pension contributions. A have been recalled through the years. A prominently cited reason the three Democrats noteworthy example was the unseating of were targeted was that they were among the 14 seven members of the Milwaukee County Democrats, the entire minority caucus in the Board of Supervisors in 2002 due to Senate, to leave the state for approximately controversy over costly changes to the county three weeks during the debate over Act 10. employee pension system. Before 2012, no Their absence, which prevented the statewide elective official has ever faced a three-fifths quorum of the elected recall, and only one member of the judiciary, membership required to act on appropriation Dane County Judge Archie Simonson, has bills, delayed the passage of the law. They been recalled (1977). returned to the state after the fiscal items were LRB−12−WB−1 − 7 −

removed from the legislation and the Kleefisch, and Senators Scott Fitzgerald, Van collective bargaining limits were passed with Wanggaard, Terry Moulton, and Pam only Republican votes. Galloway, all Republicans, will be subject to The following retained their seats in July recall elections in June 2012. While Senator and August 2011 recalls: Galloway resigned her seat in March 2012, S Senator Robert Cowles (R-Green Bay). there will still be an election for the seat. While other issues have been cited as being involved S Senator Alberta Darling (R-River Hills). S in prompting the recalls, news accounts Senator Sheila Harsdorf (R-River Falls). suggest that Act 10, which limits the collective S Senator Luther Olsen (R-Ripon). bargaining powers of public employees, is the S Senator Jim Holperin (D-Conover). primary factor motivating the recall efforts. S Senator Robert Wirch (D-Pleasant Prairie). 4. FOR MORE INFORMATION S Senator Dave Hansen (D-Green Bay). The following lost their seats in July 2011: For information about procedures for conducting initiatives, referenda, and recalls, S Senator Randy Hopper (R-Fond du Lac). S and the campaign finance laws relating to Senator Dan Kapanke (R-La Crosse). these topics, contact the Wisconsin 2012 Scheduled Recalls. Governor Scott Government Accountability Board at (608) Walker, Lieutenant Governor Rebecca 266-8005, http://gab.wi.gov/.