Election Law

Wisconsin’s campaign finance law prohibits candidates for elective office from coordinating spending by outside groups on “issue advocacy.” “Issue ads” do not expressly ask the public to vote for or against a candidate, but they often attack a candidate’s opponent. In this case, the majority held Wisconsin’s law unconstitutional because the First Amendment and the Wisconsin Constitution only permit states to regulate “express advocacy.” Abrahamson dissented, arguing that by adopting a faulty interpretation of the Wisconsin law and the First Amendment, the majority subjected the democratic process to potential corrupting influences. Two years later, the United States Supreme Court summarily affirmed a lower court decision holding that under the First Amendment states may indeed regulate issue advocacy. Independence Institute v. Federal Election Commission, 216 F. Supp.3d 176 (2016), aff’d 137 S. Ct. 1204 (2017).

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In general, Wisconsin may require voters to verify their identity before casting a ballot. But Act 23 imposed a new restriction: people who meet the constitutional requirements to vote may be stripped of that right if they fail to produce a specific type of government-issued ID. The majority held Act 23 constitutional. Abrahamson dissented, arguing that Act 23 is unconstitutional. She said the majority was following “not James Madison—for whom Wisconsin’s capital city is named—but rather Jim Crow—the name typically used to refer to repressive laws used to restrict rights, including the right to vote, of African-Americans.”

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