Sauk County attorney calls gerrymandering ballot question unlawful

Interim Sauk County Assistant Corporation Counsel Deb O'Rourke issued a legal opinion Friday that said a proposed ballot question on redistricting is unlawful. A Dane County government attorney says he disagrees.

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An eleventh-hour legal opinion has injected uncertainty into the Sauk County Board battle over a possible referendum on gerrymandering this spring.

“This is not a political issue,” Interim Sauk County Corporation Counsel Deb O’Rourke said. “This is a legal decision.”

She issued an opinion Friday disputing the legality of a proposed Sauk County referendum that would ask voters whether they support nonpartisan reforms to the way political maps are drawn.

The opinion centers on a law that allows county boards to place questions on local ballots. O’Rourke says the law allows advisory referendums on local issues only, not matters controlled by the state Legislature.

That bolsters opponents of the referendum who serve on a committee that will decide its fate. The Executive and Legislative Committee plans to meet Tuesday to decide whether the board will be allowed an up or down vote on the referendum later that evening.

Other counties have run advisory referendums on state government issues, including gerrymandering. An attorney for one of those counties who reviewed O’Rourke’s opinion said he disagrees with it.

In an email Saturday, Dane County Assistant Corporation Counsel David Gault said he believes the proposed Sauk County referendum is lawful.

“I think she is taking an overly restrictive interpretation of (the law),” Gault said after reviewing O’Rourke’s opinion. “The authority to do a referendum for advisory purposes is not limited. I think they can do an advisory referendum on anything.”

The Dane County Board authorized a 2014 referendum in which more than 80 percent of voters said they favored the creation of nonpartisan redistricting procedures. Dane and Milwaukee counties also have run ballot questions on the state’s minimum wage.

Just like those referendums, the one proposed in Sauk County would give voters a chance to speak directly to state lawmakers. It could not compel them to act.

County group’s attorney consulted

O’Rourke said she consulted with Wisconsin Counties Association General Counsel Andy Phillips prior to issuing her opinion. “He said, yeah, you’re right,” she said.

That adds to confusion about WCA’s influence in the Sauk County referendum battle.

During a meeting last week, Board Chair Marty Krueger of Reedsburg argued against allowing the board an up or down vote on the referendum. He said WCA “is not supporting” the ballot question and that the group’s director believes it will “irritate” lawmakers.

The next day, WCA Executive Director Mark O’Connell clarified the group’s stance. He said “WCA supports the ability of a county to have an advisory referendum on any issue the county deems appropriate.”

Asked Saturday whether the support O’Rourke received from a WCA attorney signals a change in the group’s position, O’Connell said it does not. He said WCA continues to support the county’s ability to have an advisory referendum on any issue it deems appropriate.

O’Rourke’s opinion may influence decisions to run gerrymandering referendums elsewhere in the fall election, which will feature a gubernatorial race and competition for state and congressional offices.

Supervisor Peter Vedro of Baraboo, who proposed the ballot question, said he expects Sauk County to be a “testing ground” for similar referendums in other counties this November. Vedro ran for the Wisconsin Assembly as a Democrat in 2014, but was defeated in a primary election.

Citizen petition not allowed

O’Rourke’s opinion about the referendum’s legality came on the heels of another she issued Thursday that said citizens cannot force a question on the ballot by way of a petition.

That debunked statements that opponents of the proposed referendum made during a meeting last week.

Krueger and another committee member, Supervisor Dennis Polivka of Spring Green, said its not the board’s place to run a gerrymandering referendum. If citizens truly want one, the two supervisors said, they have the ability to start a petition to get it on the ballot.

O’Rourke said citizens don’t have that option. “There is no provision in state statutes for citizens to petition for placing a question on a county-wide ballot, other than for the very narrow issue of county board size,” she wrote in her Thursday opinion.

A Wisconsin Elections Commission official said citizens can’t authorize a statewide advisory referendum by way of petition either. Ballot questions must be routed through the Legislature or county boards.

“Only the Legislature can put a constitutional amendment on the ballot in Wisconsin,” said Reid Magney, a spokesman for the elections commission. “That’s why you see lots of municipalities and counties doing advisory referenda, so they can send a message to the lawmakers.”

It’s not clear when or where Tuesday’s committee meeting will take place, or if public comment will be allowed. Krueger, who chairs the panel and did not return messages, had not released an agenda as of deadline Sunday.

State lawmakers redraw political maps after each 10-year census. In 2011, Democrats alleged Republicans in control of the Legislature redrew maps in a way that ensured their candidates would maintain the majority in future elections, a process known as gerrymandering.

A lawsuit over that dispute is pending before the U.S. Supreme Court. The controversy has led some to suggest that Wisconsin adopt nonpartisan redistricting procedures similar those used in Iowa.

Follow Tim Damos on Twitter @timdamos

Reporter for the Baraboo News Republic.