Wisconsin voters will be deciding on three ballot questions—two constitutional measures and one advisory question—on April 4.
The constitutional measures relate to the conditions of release for an accused individual before conviction and cash bail. The two questions were referred to the ballot with the final passage of Senate Joint Resolution 2 (SJR 2) on Jan. 19.
In Wisconsin, the state legislature is required to approve an amendment by a majority vote in two successive sessions for the amendment to appear on the ballot.
During the 2021-2022 legislative session, the amendment was introduced as Assembly Joint Resolution 107 (AJR 107). The state Assembly approved AJR 107 by a vote of 70-21 on Feb. 15, 2022. The state Senate approved the amendment by a vote of 23-10 on Feb. 22.
During the 2023-2024 legislative session, the amendment was introduced as SJR 2. It was approved by the state Senate on Jan. 17, 2023, by a vote of 23-9. It was approved by the state Assembly on Jan. 19, 2023, by a vote 74-23. In both chambers, Republicans supported the amendment. In the House, Democrats were divided 12-23. In the Senate, Democrats were divided 2-9.
Questions 1 and 2 both amend Article I, Section 8 of the state constitution. Question 1 would authorize the state legislature to define serious harm in relation to the conditions—designed to protect the community from serious harm—a judge imposes on an accused person released before conviction. Question 2 would authorize judges to consider the following conditions when imposing and setting cash bail:
- a previous conviction of a violent crime,
- the probability the accused will not appear in court,
- the need to protect the community from serious harm as defined by the state legislature,
- the need to prevent witness intimidation, and
- the potential affirmative defenses of the accused.
State Sen. Van Wanggaard (R), one of the sponsors of the amendment, said, “The proposed amendment also broadens the factors that a judge can consider when setting a monetary condition for release, or cash bail for violent crimes. As I said earlier, Wisconsin is the only state that only allows judges to consider a single factor when setting cash bail. Under our proposal, and for violent crimes only, judges will have the flexibility to determine bail based on the totality of circumstances.”
ACLU of Wisconsin opposes the amendment saying it “would undermine the safety and stability of people detained pretrial and their communities, exacerbate inequities in the state’s cash bail system, and raise significant concerns under the due process clause of the Fifth Amendment and the excessive bail prohibition under the Eighth Amendment to the U.S. Constitution.”
Wisconsin voters last amended this section of the state constitution in April 1981 with the passage of Question 3. It was approved by a vote of 73.15% to 26.85%. The amendment permitted the legislature to allow courts to deny, revoke, or set terms of bail.
In 2022, Ohio voters approved a similar constitutional amendment that requires courts to consider factors such as public safety, the seriousness of the offense, a person’s criminal record, and a person’s likelihood of returning to court when setting the amount of bail.
The Wisconsin State Legislature also voted to send an advisory question to the April ballot asking voters, “Shall able-bodied, childless adults be required to look for work in order to receive taxpayer-funded welfare benefits?” The advisory question would have no binding effect.
To place an advisory question on the ballot, the state legislature is required to approve it by a simple majority vote in each chamber in one legislative session. The governor’s signature is not required to place it on the ballot.
The advisory question was introduced as Senate Joint Resolution 4 (SJR 4). It passed the state Senate on January 17, 2023, by a vote of 22-10. On January 19, the state Assembly passed SJR 4 by a vote of 62-35. Legislative Republicans and one Democrat supported adding the question to the ballot. The remaining Democrats opposed the question.
Between 1985 and 2022, 18 measures appeared on odd-numbered year ballots in Wisconsin. Eleven measures were approved, and seven were defeated. The last spring odd-year election to include a ballot measure in Wisconsin was in 2015. Voters approved the measure, which provided for the election of the Wisconsin Supreme Court Chief Justice by a majority of the justices serving on the court.
- Wisconsin Question 1, Conditions of Release Before Conviction Amendment (April 2023)
- Wisconsin Question 2, Conditions for Cash Bail Amendment (April 2023)
- Wisconsin Work Requirement for Welfare Benefits Advisory Question (April 2023)