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Madison Teachers Inc. is arguing they should have access to records midway through the November voting process.

AMBER ARNOLD, State Journal

The Wisconsin Supreme Court heard oral arguments Tuesday in a challenge by Madison Teachers Inc. to a state agency’s decision to withhold union recertification records — a case that could have broader implications for the state’s open records law.

The case stems from a 2015 decision by the Wisconsin Employment Relations Commission to deny the Madison teachers union’s request for a list of which teachers did and did not vote in the annual recertification election.

MTI sought the records under the state open records law so it could urge district employees who had not yet voted to do so. The union was overwhelmingly recertified.

WERC denied the request because it feared the union would coerce voters. It cited a report that coercion had happened in the Racine School District, although that report was never investigated.

WERC also cited voter privacy as a reason for not releasing the records. By state law, employees who don’t vote are counted as “no” votes after the voting period has ended. By seeing who had not voted while the voting period was still under way, WERC argued, it was possible for MTI to assume that those who hadn’t voted were votes against recertification.

The agency released the list of names after the election was completed.

A Dane County judge ruled last year that WERC should have provided the records because of the state open records law’s strong presumption of openness.

In questioning MTI lawyer Susan Crawford, Justice Michael Gableman, one of five conservatives on the court, keyed in on the concern that teachers who don’t vote would somehow be targeted because not voting carries the same weight as voting “no” in the recertification elections, which must be approved by 51 percent of all eligible members of a bargaining unit.

“They knew that by not voting, their ballot would be counted as a ‘no’ vote,” Gableman said, repeating and stressing the phrase “they knew.” “Why do you need to target? Why do you need this list?”

Crawford said the issue was more broadly about the records law, and that denying this request would create a blanket exemption to the law — something only the Legislature can do.

Justice Ann Walsh Bradley, one of the two liberal justices, said in questioning Crawford that “voter intimidation is of great concern,” but in questioning Assistant Attorney General Steven Kilpatrick also raised the concern that WERC was creating a blanket rule.

“It really is a blanket exemption you’re asking us to create, rather than the Legislature,” Bradley said.

Speaking to reporters afterward, Crawford explained the case has broader implications related to a state agency’s ability to justify denying a public records request out of concerns about how those making the request will use the information.

“It’s sort of the ‘you can’t handle the truth’ rationale,” she said.

Crawford said after the oral arguments that she expects a ruling by the spring.

A Department of Justice spokesman didn’t respond to a request for comment.