The three questions on statewide ballots and what they mean

MADISON, Wis. (WBAY) - Every voter in Wisconsin’s spring election will find three questions on their ballot. Two relating to bail would change the language of Wisconsin’s Constitution; as a binding referendum, they could not be vetoed by the governor. The third advises lawmakers of their constituents’ opinion on welfare benefits but would not immediately affect any laws.

QUESTION 1: “Conditions of release before conviction. Shall section 8 (2) of Article I of the constitution be amended to allow a court to impose on an accused person being released before conviction conditions that are designed to protect the community from serious harm?”

Under the current Wisconsin Constitution, courts may impose reasonable conditions on the release of a criminal defendant before trial for three purposes: (1) to secure the defendant’s appearance in court; (2) to protect the community from “serious bodily harm;” and (3)to prevent intimidation of witnesses. Wis. Const. art I, § 8(2).

Question 1 would change the language of the second factor from “serious bodily harm ”to “serious harm as defined by the legislature by law.” The question would thus change the type of harm to the community that a court could seek to protect against. Because the term “serious harm” would be defined by the legislature by law, what it means could evolve over time depending on legislative enactments.

A “yes” vote on Question 1 would vote to amend Wis. Const. art. I, § 8(2) to allow a circuit court to impose release conditions based on the purpose of avoiding “serious harm as defined by the legislature” rather than “serious bodily harm.”

A “no” vote on Question 1 would vote not to amend Wis. Const. art. I, § 8(2) to change the term “serious bodily harm” as a factor for determining the conditions of a defendant’s pretrial release

QUESTION 2: “Cash bail before conviction. Shall section 8 (2) of Article I of the constitution be amended to allow a court to impose cash bail on a person accused of a violent crime based on the totality of the circumstances, including the accused’s previous convictions for a violent crime, the probability that the accused will fail to appear, the need to protect the community from serious harm and prevent witness intimidation, and potential affinitive defenses?”

Question 2 would also change the language of Wis. Const. art. I, § 8(2), but in a different way from Question 1. Question 2 addresses the circuit court’s ability to impose the specific condition of monetary bail. Currently, the Wisconsin Constitution allows a court to impose a monetary bail requirement only if the court finds a reasonable basis to believe that bail is necessary in order to secure the defendant’s appearance in court. Wis. Const. art. I, § 8(2).

Question 2 would expand the factors a circuit court may consider in imposing monetary bail. In cases where a defendant is accused of a ”violent crime as defined by the legislature bylaw,” Question 2 would allow a court to impose monetary bail based on circumstances in addition to securing the defendant’s appearance in court, including accounting for a previous conviction for a violent crime, the need to protect the community from serious harm, preventing witness intimidation, and potential affirmative defenses the defendant might assert.

A “yes” vote on Question 2 would vote to amend Wis. Const. art. I, § 8(2) in cases where the defendant is accused of a violent crime to allow a court to utilize monetary bail for additional reasons in addition to securing the defendant’s appearance in court, including accounting for a previous conviction for a violent crime, the need to protect the community from serious harm, preventing witness intimidation, and accounting for the defendant’s affirmative defenses. Because the term “violent crime” would be defined by the legislature by law, what it means could evolve over time depending on legislative enactments.

QUESTION 3: “Shall able-bodied, childless adults be required to look for work in order to receive taxpayer-funded welfare benefits?”

This is an advisory referendum and would not change Wisconsin law. Wisconsin and federal law currently define various programs available to those with financial need based on criteria such as age, familial status, and disability, among other criteria. Most of those programs are limited to children, families with children, pregnant women, disabled persons, or those 65 or older, who Wisconsin law does not consider ”able-bodied” for public assistance purposes. See, e.g., Wis. Stat. § 49.79(1)(am) (defining age limits for “able-bodied” under food stamp program). Two programs currently available to “able-bodied, childless adults” are Wisconsin’s BadgerCare Plus medical assistance program and the FoodShare program, also known as SNAP or food stamps. However, those programs are subject to certain federal requirements and restrictions that either would be inconsistent with the requirement about which the referendum asks or, in some cases, already include such a requirement.

BadgerCare Plus’s medical assistance program is subject to federal Medicaid restrictions, and federal law does not allow for work-based requirements for such programs absent a federal waiver. See 42 U.S.C. §1396a(a)(10)(A). Currently, there is no federal waiver in force that would allow Wisconsin to impose work requirements on this program. Wisconsin’s FoodShare statute contains requirements that able-bodied, childless adults be employed or participate in an employment and training program, see Wis. Stat. § 49.79(9), but that requirement has been suspended by the federal government in response to the COVID-19 pandemic.

A “yes” vote on Question 3, the advisory referendum, would make no change to Wisconsin law.

A “no” vote on Question 3, the advisory referendum, also would make no change to Wisconsin law.