By TODD RICHMOND
MADISON, Wis. (AP) — Wisconsin labor officials can withhold voters’ names while union elections are underway to guard against possible intimidation and harassment, the state Supreme Court ruled on Tuesday.
Protecting voters from intimidation, harassment and coercion outweighs the public interest involved in allowing such names to be disclosed before union 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, a lawyer representing the union, said Wisconsin’s 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 taking place. 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 alleging that Scott had violated the open-records law. Peterson, the Dane County judge, agreed and awarded the union nearly $42,000 worth of damages, fees and costs.
But Roggensack wrote that the main purpose of a secret ballot is to protect voters and that intimidation was a concern in the Madison teachers’ election, citing the complaint in Racine.
“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 only liberal-leaning justices on the high court, dissented. Bradley wrote that fears of intimidation were speculative. She said the fears seemed to stem from only one, uninvestigated, complaint in a different election.
The Supreme Court’s ruling marks the third time in three years the court majority has undermined the open-records law, Bradley lamented. She noted the court found in 2016 that the state Democratic Party wasn’t entitled to videos of training sessions conduced by Attorney General Brad Schimel, a Republican, and had ruled last year that the immigrant-rights group Voces de La Frontera wasn’t entitled to complete 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.”