The Wisconsin Legislature has gamed the State’s voting laws in order to encourage voting by non-resident students (D-IL) in Wisconsin elections. In doing so, they ignore and contradict other sections of the voting laws; as well as regulations regarding driver registration, residency rules for the state universities, requirements for filing Wisconsin taxes, and IRS rules for claiming dependents.
The reason for my obsession
In the last two presidential elections, Wisconsin was carried by the Democratic candidate by tight margins.
Gore by 5,708 votes in 2000When compared to the 2007-08 UW System non-resident student population of 34,361, voting by non-resident students in Wisconsin could easily have made the difference in each election. These non-resident student voters may throw Wisconsin to Obama in 2008.
Kerry by 11,384 votes in 2004
Before looking at the law, let me make one thing perfectly clear: You can have only one residence at any one time. That residence is not the hotel room, timeshare, cruise ship cabin, temporary apartment or dormitory room where you stay for part of the year. Your residence is what it is. It is the place that you call home.
You do not get to arbitrarily chose where your residence is in order to meet the rules for a special circumstance, such as registering to vote, while ignoring the other obligations associated with establishing your residence, such as obtaining a driver’s license.
For college students the residency test is pretty simple. Their home is the place where they live when they are not in school during the summer. If they stay in their apartment near campus in Madison, that is their home. But if they pack up and return to Mommy’s house when classes end in May, their residence is in Naperville, not Madison.
If fact, this circumstance is recognized by Wisconsin's Department of Revenue, and is even used as an example in it's Publication 122.
Example 2: You graduated from high school in Minnesota where you lived with your parents. In August of 2007, you moved to Wisconsin to attend the University of Wisconsin. You do not plan to remain in Wisconsin after you complete your course of study at the university. You do not take any steps to abandon your Minnesota residence or to acquire a new residence in Wisconsin. You are a nonresident of Wisconsin for 2007.The answer to this test also has consequences as to the state the student must file taxes in and whether their parents may claim them as dependents. Those details will be discussed in a later episode.
Ask the UW
Because I am concerned with the resident status of college students, the rules of the University of Wisconsin System have some relevance. The UW has it figured out. It is not a matter of choice or "election," they have hard and fast rules with a rational basis behind them. Section 36.27(2)(d) of the Statutes is a concise summary.
In determining bona fide residence at the time of the beginning of any semester or session and for the preceding 12 months the intent of the person to establish and maintain a permanent home in Wisconsin is determinative. In addition to representations by the student, intent may be demonstrated or disproved by factors including, but not limited to, timely filing of a Wisconsin income tax return of a type that only full-year Wisconsin residents may file, voter registration in Wisconsin, motor vehicle registration in Wisconsin, possession of a Wisconsin operator's license, place of employment, self support, involvement in community activities in Wisconsin, physical presence in Wisconsin for at least 12 months preceding the beginning of the semester or session for which the student registers, and, if the student is not a U.S. citizen, possession of a visa that permits indefinite residence in the United States. Notwithstanding par. (a), a student who enters and remains in this state principally to obtain an education is presumed to continue to reside outside this state and such presumption continues in effect until rebutted by clear and convincing evidence of bona fide residence.Although the UW is abundantly clear and rational as to who is resident and who is a non-resident, the legislature provides an irrational and arbitrary loophole in the voting laws.
6.10 Elector residence.Nice try, but this does not override the definition of “residence” in the remainder of Section 6.10 and, by the way, violates the equal protection clause of the Wisconsin Constitution.
(12) Student status shall not be a consideration in determining residence for the purpose of establishing voter eligibility.
What the voting laws say
The Wisconsin Constitution states the following.
ARTICLE III. SUFFRAGEIt further specifically allows the Legislature to define residency for voting.
Electors. Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.
Implementation. SECTION 2.So how has the Legislature defined residency?
Laws may be enacted: (1) Defining residency.
6.02 Qualifications, general. (1) Every U.S. citizen age 18 or older who has resided in an election district or ward for 10 days before any election where the citizen offers to vote is an eligible elector.There is a lot there, and the pieces must be put together in context to determine their meaning.
6.10 Elector residence. Residence as a qualification for voting shall be governed by the following standards:
(1) The residence of a person is the place where the person’s habitation is fixed, without any present intent to move, and to which, when absent, the person intends to return.
(N.B. – This fits nicely with my rule of thumb student residency test.)
(4) The residence of an unmarried person sleeping in one ward and boarding in another is the place where the person sleeps. The residence of an unmarried person in a transient vocation, a teacher or a student who boards at different places for part of the week, month or year, if one of the places is the residence of the person’s parents, is the place of the parents’ residence unless through registration or similar act the person elects to establish a residence elsewhere.
(8) No person gains a residence in any ward or election district of this state while there for temporary purposes only.
Student housing at the residential halls in the UW system is for a nine month period. The contract runs from mid-August through mid-May, at which time the students must vacate their dormitories. Within the context of paragraph (1) of Elector Residence, university sponsored housing cannot be "the place where the person’s habitation is fixed (...) and to which, when absent, the person intends to return." This is simply because every May, students living in residence halls are tossed to the street and must return to their permanent residence. For these students, that "place where the person’s habitation is fixed" is usually Mommy's house, and cannot be a UW residence hall which, by definition, is a transient habitation.
Paragraph (4) of Elector Residence confuses this distinction by allowing these students to "elect to establish a residence elsewhere" through voter registration. This election cannot be made by dormitory students, because the dorms are transient habitation and cannot rationally be elected as their residence. Furthermore, Paragraph (8) states that "No person gains a residence in any ward or election district of this state while there for temporary purposes only" and this includes students (Paragraph (12)).
Paragraph (4) also allows an elector to choose their residence in an irrational and arbitrary manner. The addition of the “unless through registration or similar act the person elects to establish a residence elsewhere” clause is unnecessary. If a student does take action to establish his or her residence at the location that they attend school, they are no longer “a student who boards at different places for part of the week, month or year.” They are a full-time resident of that place and no further distinction is needed in the Statute. Furthermore, any election of residence for voting is irrational and arbitrary unless all other actions to establish residency are completed (see the UW requirements for residency for the elements of a rational test).
UW officials facilitate vote fraud
The Wisconsin Statutes allow the following as proof of residence for college students.
6.34 Proof of ResidenceThis Statutory wording provides the University of Wisconsin with direction to facilitate voter fraud. It is already established that university residence halls cannot be the residence of the students that live in them for nine months of the year. By registering and voting by declaring their dorm room as their “residence,” these student have committed vote fraud. The university officials are parties to these fraudulent acts by certifying that these transient locations are the bona fide residence of the students.
6.34 (3) (a) 7. A university, college, or technical college fee or identification card that contains a photograph of the cardholder. A card under this subdivision that does not contain the information specified in par. (b) shall be considered proof of residence if the university, college, or technical college that issued the card provides a certified and current list of students who reside in housing sponsored by the university, college, or technical college to the municipal clerk prior to the election showing the current address of the students and if the municipal clerk, special registration deputy, or inspector verifies that the student presenting the card is included on the list.
What to do
The obvious way to attack the problem of fraudulent student voting is to challenge the registration of these voters. However this is unlikely to achieve success with partisan city clerks. A court challenge will likely be needed to resolve this issue. This would be a welcome second front in the war with ACORN.
Bring. It. On.
I have plans to address the consequences to the student and their parents of voter registration, but that's another episode.
A word of advance warning, the declaration of a university address as a student's residence will affect the ability of his or her parents to declare the student as a dependent. This is true for both resident and non-resident students.
I need access to the a five point test to determine reasonableness from Omernik v. State, 64 Wis. 2d 6, 218 N.W.2d 734 (1974) for a future blogpost. Any help in locating this would be greatly appreciated.
Apparently I am not completely off the wall here. Michael Krauss at NRO points to some case law supporting my position and provides some relevant examples of the consequences of a student changing their residence.