The Wisconsin Capitol on spring election day, April 7, 2020. (Henry Redman | Wisconsin Examiner)

Election administration experts say that President Donald Trump’s executive order seeking to require that people prove their U.S. citizenship to register to vote is unlikely to survive legal challenges, but even if it did, it would not apply to Wisconsin’s April 1 election. 

On Tuesday, Trump signed the order that purports to pull federal funding from the Election Assistance Commission for states that do not require that voters prove their U.S. citizenship to vote in federal elections. The order also attempts to give Elon Musk’s DOGE access to states’ voter registration lists and gives the Department of Homeland Security the authority to verify the citizenship status of voters and make the prosecution of non-citizen voting a priority at the Department of Justice. The order also demands that election administrators use paper ballots or paper ballot trails.

In recent years, Trump and Republicans have become increasingly focused on alleged non-citizen voting. Since Trump’s false claims that the 2020 election was stolen, Republicans in Congress have worked to pass the SAVE Act, which contains similar provisions to the Trump order. Last year in Wisconsin, voters approved a Republican-authored constitutional amendment to prevent non-citizens from voting in local, state or federal elections — despite it already being against the law for non-citizens to vote. 

Voting rights advocates have frequently cautioned that the provisions included in the Trump order and the SAVE act would potentially disenfranchise millions of married American women who have a different last name on their current ID than on proof of citizenship documents like a birth certificate. Estimates say this could prevent more than 69 million women from voting. 

“Let’s keep it real: this order is not about protecting elections; it is about making it harder for voters — particularly women voters — to participate in them,” Celina Stewart, Chief Executive Officer of the League of Women Voters of the United States, said in a statement. “This executive order is an assault on our republic and a dangerous attempt to silence American voters. The President continues to overstep his authority and brazenly disregard settled law in this country. To be very clear — the League of Women Voters is prepared to fight back and defend our democracy.”

Trump issued the order just one week before Wisconsin’s April 1 election and days after he endorsed Waukesha County Judge Brad Schimel in the race for a seat on the state Supreme Court. 

“President Donald Trump’s sudden, overbroad and sweeping executive order issued yesterday, just one week before Wisconsin’s nationally important and closely watched State Supreme Court election on April 1st is likely unconstitutional and destined to be rejected by federal and state courts and the U.S. Congress in part or completely,” Jay Heck, executive director of Common Cause Wisconsin said after the order’s release. Heck also sent out a press release telling Wisconsin voters that the order does not apply to the April 1 election.

Ann Jacobs, the Democratic chair of the Wisconsin Elections Commission, wrote on social media that there are a number of reasons why the order won’t apply to the election next week. The order only applies to federal elections and there are no federal offices on the ballot — only elections for state and local offices. And the order is not set to go into effect for 30 days, long after April 1. 

Jacobs also said that the order focuses on provisions on the National Voting Rights Act (NVRA). Also known as the “Motor voter” law, the NVRA requires most states to offer people the ability to register to vote at state motor vehicle agencies, by mail or at certain state or local offices. The law also requires states to maintain up-to-date voter registration lists. 

Wisconsin is one of six states that is exempt from the NVRA because it allows people to register to vote in-person at the polls on Election Day, so, Jacobs said, any provisions of the Trump order purporting to use the authority of the NVRA aren’t applicable to Wisconsin. Jacobs also pointed out that Wisconsin is prohibited from even using an NVRA-specific voter registration form because of a Waukesha County court ruling against its use. 

Jacobs added that Wisconsin already uses paper ballots or paper voting trails to keep a record of every ballot cast in the state. 

“It is disappointing that the federal government is attempting to make people worry about voting this close to an important election,” Jacobs wrote. “I hope this is not a ham-fisted attempt to shore up a failing bid for the [Wisconsin Supreme Court] by the candidate currently behind in the polls.”

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Don Millis and Ann Jacob, the former and current chairs of the Wisconsin Elections Commission, testify Tuesday, Feb. 4, at an Assembly hearing on a commission rule for election observers. (Photo by Erik Gunn/Wisconsin Examiner)

For nearly two years the Wisconsin Elections Commission has been developing a rule that would govern election observers.

Observers have long turned up to oversee the voting process on Election Day, representing the Democratic and Republican parties. Historically it was an uncontroversial civic exercise. Observers, says Jay Heck, director of Common Cause-Wisconsin, typically focused on whether voting machines worked properly, lines (if they existed at all) were moving smoothly and the voting process was uneventful.

But the number of observers and the number of groups sponsoring them have increased over the last several elections — along with growing polarization around voting rights and ongoing legal and legislative battles over conflicting claims of voter fraud and voter suppression.

Last week, those conflicts surfaced when lawmakers heard testimony for and against a proposed Wisconsin Elections Commission rule that would codify the rights of election observers as well as set limits on their behavior.

Wisconsin’s election law — rewritten in 2015 when the Wisconsin Elections Commission was established — requires polling place election chiefs to designate spaces for election observers between 3 and 8 feet from the table where people register to vote and the table where registered voters sign in and receive their voter number.

Beyond that, however, the law leaves a lot open-ended, said Don Millis, a Republican member of the commission and its former chair, at an Assembly hearing Tuesday, Feb. 4. 

Mills, who was appointed to the commission in 2022, recalled that a fellow Republican told him the body should write a rule on election observers because the state elections statute “is very vague and that some clerks are not treating Republican observers properly.”

State elections law requires the commission to write a rule addressing the conduct of observers and their interactions with election officials, Millis said, but the body had not previously carried out that assignment.

From August 2022 to October 2024

The rulemaking process started in August 2022. Gov. Tony Evers approved the rule’s final draft Oct. 3, 2024.

Tuesday’s hearing before the Assembly Committee on Campaigns and Elections was the next step in the process of establishing a rule.

The proposed rule doesn’t change the state law that specifies the area set aside for election observers. But Millis said the rule includes a number of provisions setting forth rights for observers that aren’t in the current law.

For example, the rule specifies that observers can begin on Election Day either when the polls open at 7 a.m. or when the vote counting tabulation machines are reset to zero, whichever is earlier. It also allows observers to move about in the designated area for observers, ask questions of election officials and to talk quietly among themselves, Millis said.

The rule allows observers to see non-confidential information, Millis said. It does not allow them to see voters’ photo IDs presented as required under state law, which it defines as confidential.

“Without these rules, we’re going to have situations where there are no uniform [requirements], and I think that in certain areas, public observers will feel that they are intimidated and not able to do what the rules [would allow],” Millis testified.

“This is a bipartisan effort,” said Ann Jacobs, the elections commission’s current chair, who joined Millis in testifying in favor of the rule.

State law divides the commission’s six members evenly, with three appointed by Democrats and three by Republicans, and stipulates that the chair’s job must shift every two years between representatives of the two parties.

Advisory committee with ‘a wide net’

Before drafting the rule, Millis said, the commission assembled a committee of interested persons to share their concerns about the current handling of election observers and discuss what they would want a rule to include.

Millis said the commission cast “a wide net” for participants. The committee included election clerks, poll workers, political party representatives and representatives from groups focused on voting and elections, including Common Cause and the League of Women Voters.

There also were members from True the Vote and the Wisconsin Election Integrity Network — both of which have amplified allegations of voter fraud in Wisconsin and have recruited election observers as well.

As the elections commission and its staff began drafting the rule, “if there were dissenting voices, we wanted to hear it,” Millis said.

The commission voted on each provision, approving them 6-0, Millis said, The final vote, however, on Sept. 11, 2024, was 5-1, with Republican Robert Spindell, voting against approval.

Testifying Tuesday in favor of the rule, Eileen Newcomer, voter education manager for the League of Women Voters, said that without it, the elections commission can only offer guidelines to local election administrators.

“There are no requirements that election clerks and observers adhere to the guidance,” Newcomer said. Participants in the league’s election observer program who have worked at several polling places have reported that “there are different rules from one polling place to another.”

Newcomer was among the advisory committee’s participants.

But a string of activists who have promoted voter-fraud allegations — including some who also took part in the advisory committee — testified at the hearing against the rule.

Ken Dragotta, who was on the advisory panel representing True the Vote, criticized the rule for not addressing absentee ballots, which he said are “a privilege” under state law and “must be carefully regulated to prevent the potential for fraud or abuse.”

“Election laws are already far too complex for the average election official to properly navigate,” Dragotta said. The rule “does nothing but obstruct the legal rights of citizens to observe the election process and puts them at greater risk in the process, in addition to provide additional authority of election officials to control the movement and action of the observers.”

Among the other witnesses criticizing the rule was former State Rep. Janel Brandtjen, a Menomonee Falls Republican who previously advocated overturning Wisconsin’s 2020 vote in which Joe Biden defeated Donald Trump’s reelection bid. Several investigations and court cases confirmed Biden as the winner in 2020.

Brandtjen reiterated Dragotta’s assertion that the rule would subject observers to being penalized at the polls by hostile chief election inspectors. She listed previous incidents when, she asserted, observers had been unfairly challenged by election clerks. She also called for the Republican-majority Legislature and Evers, a Democrat, to work out new legislation to address the subject.

State Rep. Dave Murphy (R-Greenville) questioned whether the split state government would produce a law “any better than what this is.” He also observed that previous incidents Brandtjen pointed to happened under the current legal framework.

“I’ve got a folder full of people here complaining about what has happened in the past,” Murphy said. “I’m trying to figure out whether the change is better or worse than the status quo.”

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