Wisconsin Justices Rule State Can Wait to Release Union Voting Records

MADISON, Wis. (CN) – The Wisconsin Supreme Court ruled Tuesday that state officials can shield the names of voters while union recertification elections are underway to protect against potential intimidation and harassment.

In a 5-2 decision, the justices reversed a lower court’s decision siding with Madison Teachers Inc., a union, and instead found in favor of the Wisconsin Employment Relations Commission, or WERC.

The union, abbreviated in court records as MTI, made several requests for the names of Madison Metropolitan School District employees who voted during a 2015 collective-bargaining recertification election. WERC denied the requests on the basis of Chairman James Scott’s determination that union elections should be free from potential voter harassment.

“Because we conclude that Scott lawfully performed the balancing test in concluding that the public interest in elections free from voter intimidation and coercion outweighs the public interest in favor of openness of public records, we reverse the circuit court,” Chief Justice Patience Roggensack wrote in a 20-page ruling.

State law requires public unions to hold annual recertification elections to keep their collective-bargaining rights. Fifty-one percent of union employees must vote “yes” to keep the certification. A non-vote by an employee who chooses not to participate counts as a “no” vote.

WERC held MTI’s recertification election over the course of 20 days in November 2015 through telephone and internet votes. Data was collected by the American Arbitration Association, which was required to send the results to WERC within one business day of the election’s conclusion, according to court records.

MTI told Scott about its plan to request voter names one week before the election began, writing that it “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.”

The teachers union made two open-records requests during the course of the election “for the names of employees, by bargaining unit, who had voted as of that date,” court records show.

Scott denied those requests, stating that WERC did not have the documents because the American Arbitration Association tracked the votes.

He also cited the importance of “maintaining the secrecy of the ballot and of avoiding the potential for voter coercion while balloting is ongoing.”

Scott granted MTI’s third records request made after the election ended and turned over the voter names the following day.

MTI filed a lawsuit days later, challenging Scott’s denial of their requests while the union election was underway.

On Tuesday, the Wisconsin Supreme Court overturned the Dane County Circuit Court’s finding that Scott’s denial of the first two requests “failed to overcome the strong presumption in favor of openness of public records.”

“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,” Chief Justice Roggensack wrote for the court’s majority.

Roggensack was joined in the majority by Justices Annette Ziegler, Michael Gableman, Rebecca Bradley and Daniel Kelly.  

Justice Ann Walsh Bradley slammed the majority’s ruling in a scathing dissenting opinion, in which she was joined by Justice Shirley Abrahamson.

“Despite Wisconsin’s longstanding public policy favoring transparency, for the third time in three years this court continues to undermine our public records law,” Bradley wrote. “Yet again, this court overturns a lower court decision favoring transparency of records to which the public is rightfully entitled.”

Bradley said the “mere possibility of voter intimidation or coercion… falls short of establishing a reasonable probability that such harm would actually occur.”

“Ensuring the integrity of elections is an important public interest. For that reason, the legislature empowered WERC with tools to investigate and penalize unfair labor practices, including voter coercion,” she wrote. “The legislature did not, however, carve out an exception to the public records law permitting WERC to withhold records that historically have been accessible to the public.”

MTI is a union made up of Madison Metropolitan School District teachers and other educational professionals.

Its lead attorney, Susan Crawford of Pines Bach, criticized the majority’s decision in a statement.

“As a result of the court’s decision, unions will as a practical matter have no effective way to monitor the WERC’s administration of the elections or to track voting, as they would if WERC conducted elections at a physical polling place,” Crawford said. “The court’s decision will have far-reaching consequences for the open records law and is a blow to transparency and open government.”

WERC did not immediately respond Wednesday to an email request for comment on the ruling.

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