By Kirsten Adshead | Wisconsin Reporter
MADISON — The Government Accountability Board stumbled into an ambiguous area of state law Tuesday and came out of it with a new policy, which authorizes electronic “documents” — such as a bank statement on a smart phone — as proof of residency when registering to vote.
But a day later it was still unclear whether GAB can legally adapt the policy.
“If we’re going to change our policy we’d like to make sure, be confident, first of all, that it’s permitted under the statutes,” GAB staff attorney Mike Haas said.
“This is not a policy that I think our staff is necessarily opposed to. I think if it is changed, though, we want to do it in the way that is most efficient, and we’re certain, and that it does take into consideration any feedback from our local election officials, our partners at the local level.”
Wisconsin law allows people to register to vote up to and including election day – but they need to submit proof they live in the district in which they’re trying to vote.
That proof includes lease agreements, utility bills and the like.
Until now, would-be voters had to present a paper document proving residency.
The new GAB policy would allow someone with a smart phone, for example, to bring up an online bank statement, including an address, as proof.
“I think we’ve got to bring ourselves up-to-date,” GAB member Judge Thomas Cane said.
The question for GAB staff, however, is whether statutory authority exists for the GAB to allow electronic copies as proof of residency.
In the memo prepared for the board in preparation for Tuesday’s meeting, the staff said definitions of “document” leads to the conclusion that a paper document is required.
But, the memo continued, Chapter 137 of Wisconsin law “regulates and seeks to facilitate broader use of electronic transactions in the conduct of business, commercial, and governmental affairs.”
But even then, “(t)he Department of Administration is responsible for promulgating rules concerning the use of electronic records, to promote consistency regarding the use of electronic records and electronic signatures by governmental agencies.”
Haas said he hasn’t found any rules governing the use of electronic records, but he was still trying to meet with the DOA attorneys to find out whether relevent administrative rules were being written.
“I think you can make an argument, as we point out in the memo, that the provisions of Chapter 137 would support the board supporting electronic records for proof of residence,” he said.
The DOA did not immediately return a call from Wisconsin Reporter on Wednesday seeking a response to the GAB’s policy change.
GAB spokesman Reid Magney noted the GAB has the authority to interpret statutes.
The board’s interpretation ultimately may not stick.
“The way things work, the board makes a policy and if the Legislature believes for some reason that, for example, that the GAB is interpreting the law in a way that they don’t’ agree with, their option is to require us to go through the administrative-rule making process,” Magney said. The process involves public notice and the governor’s office.
Given the intense political focus on Wisconsin over the past 18 months, the never-ending elections and the controversial voter ID law, voter fraud and the integrity of elections has become a hot-button issue in the state.
The GAB’s new policy is unlikely to comfort those who suspect state elections problems.
“A utility bill on a smart phone with a 3-inch screen looks a lot different than a paper bill on an 8.5 x 11 inch sheet of paper,” Sen. Mary Lazich, R-New Berlin, blogged Tuesday. “Considering the practical implications for our poll workers, many of whom are seniors, I am deeply concerned by today’s decision.”
Mark Guerrera, vice president of the IT-consulting company Smart Solutions in Madison, said it’s relatively easy to change an online document by, for example, using software that changes a PDF into a Word document, which a person could then edit.
Even with barriers preventing that, Guerrera said, “Most of the stuff you can get around. I don’t think there’s anything that is 100 percent foolproof that you can’t make a change to.”
But the GAB’s new policy doesn’t necessarily make voter fraud easier, either. After all, under the paper documents-only policy, potentially fraudulent voters could still forge a document. They would just have to print it out.
Kevin Kennedy, GAB director and general counsel, said poll workers are required to not just look at the proof of residence, but also write down the type of document and the customer code, if available – a way of creating a trail that can be followed if allegations are made.
Diane Herman-Brown, co-chair of the Wisconsin Municipal Clerks Association’s elections communication committee, said an informal survey of municipal clerks showed about an even split on the issue.
But she asked the GAB to act now, rather than wait until its November meeting, if changes are to be made.
Herman-Brown said some clerks already have overseen seven to eight elections in the past year, including recalls and recounts. Then there’s the ongoing battle over the voter ID law, which would require voters to present a valid photo identification card, but that’s under two separate judicial injunctions.
The last thing clerks want is another last-minute policy change, she said. “Honestly, we are overwhelmed.”
Contact Adshead at [email protected]