Recordings and Open Meeting Laws

There was a little article in the Milwaukee Journal Sentinel that went pretty much unnoticed and as far as I know, uncommented on. But apparently a gentleman from a more rural area of Southeastern Wisconsin had a fixation on how we all vote here in the big city of Milwaukee.

He likes to observe vote counting and reconciliation and would prefer to videotape the proceedings if he were only allowed to do so. But apparently that is forbidden unless the Wisconsin Attorney General declares such polling activity as subject to open meeting laws. Now that is the crux of the matter…open meetings can be recorded by anyone who is interested…and government bodies subject to open meeting laws are required to facilitate citizens whose hobby might be recording open meetings.

Here is the initial exposition in the article about our civic hobbyist and the questions about the open meeting status of poll activities:

John Washburn is an election gadfly, eager to observe and videotape post-election activities at the polls.

More than 18 months ago, Washburn wrote Wisconsin Attorney General J.B. Van Hollen, requesting a legal opinion on whether the nuts and bolts of counting and reconciling votes are subject to the state’s open meetings laws. Even if they aren’t, observers are still allowed to witness the process.

It may be a fine distinction to most, yet Washburn is still awaiting an answer.

And he’s not the only one.

In May, the state Government Accountability Board also requested an opinion from Van Hollen to determine how open meetings requirements might apply to post-election activities.

With November fast approaching, election officials are seeking clarity on the open meetings issue before voters hit the polls.

“This is one of the core processes of an election, the canvass,” Washburn said in a telephone interview. “I’d like to watch the activity and keep an eye on it. It is the way the consent of the governed is transferred so the government can justify its powers.”

Washburn, of Germantown, is well known to Milwaukee election officials. Twice, he’s been asked to leave rooms where votes were being tabulated or reconciled.

The first time was election night 2012, when Washburn and several others attempted to videotape activities at the Zablocki Library after the polls closed. Poll workers were surprised to see him taping and told him to leave.

Two days after the most recent primary, Washburn showed up at Milwaukee’s post-election reconciliation. Under a requirement passed earlier this year by the state Legislature, election observers have to produce photo identification.

“When he refused to do that, the observer rules were enforced and he was asked to leave,” said Neil Albrecht, executive director of the Milwaukee Election Commission.

No I know I am being a little flip about Mr. Washburn’s activities. But it is a rather interesting conundrum. And I am not sure whether I feel that vote gathering and polling and reconciliation is an open meeting or an official work activity of public employees. And although I am all in favor of transparency in the voting process…I am not so sure there isn’t some form of intentional intimidation of poll workers involved here…particularly when out of town ‘observers’ are involved. Now I am not suggesting that Mr. Washburn is doing anything but being curious…and given his refusal to provide ID as an observer, I wonder what his stance is on voter id.

Well enough of that, let’s get to the meat of my interest in this article. Here is the pertinent snippet on why everyone wants a ruling on whether this is an open meeting type of government activity:

“If the open meetings law applies, it requires the government body to allow and facilitate recording of their meetings by anyone who cares to,” said Dreps (Mr. Washburn’s attorney, Robert Dreps), who has previously represented Washburn as well as the Milwaukee Journal Sentinel.

Open meetings requires government to allow recording of their meetings. Now why is this so interesting? Because the most obvious and conspicuous open meetings in the State of Wisconsin occur under the dome of the Capitol in the Assembly Chamber…but you CAN NOT record those proceedings in any way shape or form. The State Assembly is the biggest violator of open meetings laws in the State of Wisconsin. Maybe the Capitol Police should turn their attention to arresting the criminals on the Assembly floor instead of the citizens in the gallery who are trying to audio record, video record or simply taking notes on the proceedings in chambers. It might be a far more productive use of their time!


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9 thoughts on “Recordings and Open Meeting Laws

  1. Interesting and Muni’s would have to properly post public notice and agenda to be able to legally count the votes? A democratically leaning municipality, failing to post public notice could have their votes tossed?

  2. It would be nice if all the counting procedures where recorded by a videographer for public archival use in all counties, in all elections. Might be nice to know what happens behind closed doors in Waukesha especially. Voter fraud is really a side circus compared with the inside dealing done in the caucuses and committee rooms at the statehouse. It may be like watching sausage being made, but it would be nice to know how the source of the stuffing for laws and regulations.

  3. Can you say more about why “I am not sure whether I feel that vote gathering and polling and reconciliation is an open meeting or an official work activity of public employees.”?

    As a regular Joe participating in what I believe was intended to be a nation of self-governing people, I cannot see an upside to allowing our votes to be canvassed behind closed doors by (whomever happens to be in control of) our government. So they come out from behind the closed doors and announce that their bosses have been re-elected, and you’re okay with that? Tell me why, please?

    1. I understand transparency in the count and reconciliation and I would really appreciate that be the norm. But I also can see the possibility of intimidation and interference from ‘observers’. There is a reason that poll watchers are now allowed closer to the action in the polling places…it’s not to protect the sanctity of the vote.

      1. Ed, put on your self-governing-citizen’s hat and think it through: Transparency in the selection of those who will exercise government power is nothing more to you than something you would “really appreciate”?

        And hey, I’m with you on that ‘intimidation and interference’ thing. Bad stuff, that. But Ed, give it a millisecond’s rational thought! You are saying that you are willing to accept the very high risk of partisans’ undetectable interference in non-transparent election processes because you don’t want to even risk possible interference by some citizens if those processes are made transparent. (I dare you to make a convincing case that interference by partisans is not a very high risk–heck, even a certainty–when our votes are counted inside black boxes and behind closed doors.)

        It blows my mind that so many otherwise sensible citizens seem to step through a looking glass when the conversation turns to election integrity: “Don’t you DARE grant a single mining permit in a closed meeting, but hey, it’s fine with me if you want to determine the balance of power in the state and federal legislatures by counting our votes inside a black box with a secret source code and then ‘verifying’ the results behind closed doors. I sure wouldn’t want to risk any citizen interference with THAT.”

        Please do your best to understand what I am saying, and then respond. I really must come to understand this weirdly common denial of the need for transparent election processes. Is it that you are assuming the existence of some safeguards that do not actually exist? Is it that you sincerely trust that no one will ever try to rig election results? Are you in the grip of a love of self-government so powerful that it blinds you to fact that it may not be yours forever, like a cuckolded husband who is blind to the obvious signs of his wife’s infidelity? What is it?

        1. It seems to me that you are jumping through a thousand hoops without any good reason. I said I hadn’t made up my mind…and that I saw both sides of the issue. Nothing more nothing less.

          But if you doubt the possibility of intimidation…reread Mr. Washburn’s comment below.

          BTW: it would be interesting to have him recount his adventures this past week.

  4. I have not confined my activities to just the City of Milwaukee. The election workers district 1 of the Village of Germantown and the Village Clerk wish and pray that attention was solely on the City of Milwaukee. But, you must sweep you own stoop first.

    Milwaukee is unique though in that the election commission does most of the canvassing activities from Wednesday to Friday following an election, but call it a reconciliation. If there is no canvassing activity at 4300 N. Richards, then why is there a stack of empty ballot bags on the east table in order to reseal an bags which are open during the day?

    I have been told for the last several years (since 2006) that the activities at N. Richards do not even need to be open to public, but Sue Edmond and Neil Albrect think it is good PR to allow the public to observe. The AG ruling though and the on October 29 opinion from the Corporate Counsel of Milwaukee County, agree with the Milwaukee Election Commission staff. There is nothing illegal about closing the 4300 N. Richards facility to the public, but if the commission staff wants to open the activities to the public they can.

    The staff’s position is that what happens in N. Richards street is not a meeting, is not canvass, and is only opened to the public at the sufferance and noblesse oblige of the staff.

    I pushed the issue back in August because I disagree. I think the bulk of the municipal canvass(v) activities as defined in 7.53 is what is happening from Wednesday to Friday at N. Richards street. I also believe that canvassing the vote should be open to public observation.

  5. Sorry if I got too far out ahead of you, Ed. Let’s see if I can clear up some of those thousand hoops:

    1) I heard you when you wrote you hadn’t made up your mind. That’s why I’m responding in so much detail. Conversing with open-minded people is more useful than talking to close-minded people.

    2) Of course I agree that citizen observation is likely to make voting-counting officials feel ‘intimidated.’ That’s regrettable and I hope every observer, including Mr. Washburn, finds a way to observe that doesn’t bother anyone. Truly, I do. If threats to democracy are rated on a scale of 1-10, I’d rate this problem at 0.25–real, undesirable, and with negligible effect on the outcome of any election because if the citizen observers and the vote-counters are observing each other, both are less likely to misbehave and hanky-panky or errors will be noted regardless of whether anyone feels intimidated. (PS-As a 30-year public servant, I considered feeling occasionally uncomfortable with the required transparency to be a necessary part of my job. My emotional comfort was secondary to my obligation to allow the citizens I served to hold me accountable for doing the job correctly. I did it despite how nervous it sometimes made me feel; I expect my election officials to be able to do it.)

    3) I heard you when you wrote you can see both sides of the issue, and that’s what I’m asking you to explain. I can see only one side: the side that says public decision-making processes MUST be observable by citizens. No matter how hard I try, I cannot see any merit in continuing to allow our votes to be counted in secret without transparent verification of the accuracy. The problem is one I would rate as 9 on a scale of 1-10, because it is real, undesirable, and presents grave and imminent danger to our right to self-government.

    I feel a desperate need to understand how thoughtful people like you can write as if the need to assure election officials don’t feel intimidated needs the same–or more–consideration than the public’s need to protect our right to self-government by transparently ensuring that election outcomes are accurate. I MUST learn to understand that attitude because it is the main thing that is preventing us from fixing the problem of counted-in-secret-and-unverified election results, a problem that could be easily and cheaply be fixed with attention from responsible citizens.

    Please respond thoughtfully; this is an important issue and a sincere question. I truly want to understand your thinking about this issue, separately from your thinking about my faults or those of Mr. Washburn. Thank you.

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