By Anya van Wagtendonk, Wisconsin Watch
Every January across Wisconsin, some towns and villages hold timehonored, in-person caucuses to nominate candidates for local offices. Residents gather in town or village halls, schools and other community spaces to vote, orally or on slips of paper, for candidates in races for positions such as supervisor, treasurer and clerk. It’s a practice guided by state law and rooted in tradition. But after the COVID-19 outbreak brought upheaval to the state’s 2020 primary and general elections, the unique structure of January caucuses now raises questions about balancing inclusion and transparency with safety concerns.
Fearing that her local caucus would become a superspreader event, Celeste Koeberl and her husband, John Gostovich, began emailing and calling officials in their town of Hudson to request the opportunity to participate remotely. The community of about 9,000 people along the St. Croix River is about 30 miles east of Minneapolis.
Koeberl, 66, and Gostovich, 72, argued that their advanced ages and underlying health conditions, as well as a disability that Gostovich has, would force them to choose between exercising their right to vote and protecting their health.
“All we’re trying to do is make our local government electoral process open to the people who are supposed to be able to participate in it, so that we can do that without threats to our health, and to our very lives,” Koeberl told Wisconsin Watch in an interview.
Town officials relocated the caucus, held Monday, from the town hall to the high school to offer more space for physical distancing but declined to offer a remote participation option.
So Koeberl filed a complaint with the Wisconsin Elections Commission, and then — recognizing that the state agency would not act before the scheduled caucus — filed a request for an emergency injunction in St. Croix County Circuit Court on Dec. 30 to halt the event.
In the court filing, Koeberl stated that the absence of a remote participation option would violate the couple’s constitutional and civil voting rights and her husband’s disability protections. Koeberl made the argument herself — virtually — before Judge Scott J. Nordstrand. On Monday morning, hours before the scheduled caucus, Nordstrand ruled against the couple. The town caucus went ahead as planned that evening. Across the state, dozens and perhaps hundreds of other such events are scheduled to take place in the coming weeks.
Some, but not all, of Wisconsin’s 1,249 towns and 412 villages hold caucuses in lieu of primaries for local offices. (The municipality may conduct a primary as well, for other state and county offices, and certain local positions excluded from the caucus process.)
Joe Ruth, legal counsel for the Wisconsin Towns Association, said his group does not track the exact number of January caucuses. Nor does the Wisconsin Elections Commission, according to spokesman Reid Magney. State law outlines the procedures, requiring municipalities to hold the events between Jan. 2 and 21, with a “preference” for Jan. 21. Candidates nominated during the caucus will end up on a later spring ballot. Town board chairpersons or village presidents preside over the caucuses, unless they are seeking their own nomination. In that case, they must call for someone else to conduct the caucus, according to a manual issued by the Elections Commision in December.
The nominations are made either through acclamation from the floor or a secret ballot vote on paper. The method is announced in advance, to allow time for objections.
These requirements make pivoting to a virtual setting challenging, Paul Mahler, the attorney for the Hudson town officials, said during Monday’s court hearing. Conducting a vote by video, he said, would “fundamentally change the process.” In their Elections Commission complaint and in court filings, Koeberl and Gostovich argued that such a pivot is both necessary and possible, because their town is already accustomed to holding public meetings by teleconferencing.
Post-holiday caucus decried
The couple, who have lived in the town of Hudson since 1993, allege that Hudson Town Clerk Vicki Shaw and board Chairman Don Jordan acted “contrary to law and in abuse of their discretion” by holding the caucus inside Hudson High School during a pandemic.
They argued that the setting put older people and people with disabilities — which Koeberl estimated to be more than 3,000 people, or almost one-third of Hudson’s population — at particular risk of becoming seriously ill or dying from COVID-19. Speaking to Wisconsin Watch, Koeberl called the caucus timing particularly dangerous, since more people may have contracted the virus during holiday celebrations.
The complaint states that without public health measures in place, the caucus is effectively inaccessible to people with disabilities, such as Gostovich, and therefore in violation of the Americans with Disabilities Act. A St. Croix County health advisory, last updated in June, states that indoor gatherings should not exceed 10 people. Federal guidance early in the pandemic recommended that people over 60 and those with serious health conditions stay home and avoid gatherings with people outside their household. More recent guidance from the Centers for Disease Control and Prevention states that older adults are at elevated risk for severe reactions to the virus.
All of this, the complaint states, amounts to a violation of the couple’s rights. And unlike November’s election, which offered absentee voting options to people who could not, or chose not to, vote in person, a caucus held exclusively in person offers no safe alternative, Koeberl argued. Koeberl also raised the issue with the St. Croix County district attorney, she said; on Dec. 29, that office declined to take up the case.
Public meeting or electoral activity?
Wisconsin’s towns are uniquely structured to function as a direct democracy in which electors can make decisions such as setting the property tax rate, said Ruth of the Wisconsin Towns Association. And caucuses are part of that.
“There’s just that feeling that it is that direct participation, that it’s the people doing it themselves,” Ruth said.
“People just like coming together … and do that in that old style, of how things used to be, way back when.” Villages, although structured more like cities, may also hold caucuses. But the problem that Koeberl and Gostovich encountered derives from a caucus’ structure. These gatherings contain aspects of a public meeting — and thereby subject to laws requiring meetings to be open and transparent — and an electoral activity, governed by voting rights’ laws.
Even experts and those who run caucuses disagree about whether the gatherings are more akin to an election or a meeting. The Wisconsin Elections Commission — the state agency tasked with overseeing election activity — does not have guidance on how to categorize these events.
“I don’t have the answer to that question,” said Magney. “That is one we have to address.”
Nordstrand, the judge hearing the case, said a caucus could not be conflated with other types of elections and was likely not protected under the federal Voting Rights Act.
“This is a meeting, at which there is an election, of sorts, occurring,” he said. During the pandemic, guidance about how to safely conduct open meetings and rules for election activities are not always aligned. For example, while a statewide mask mandate is in effect until Jan. 19, which would apply during public meetings, voters in November were not required to wear masks when they cast their ballots, because state election officials found that this was a new “qualification” for voters, which only the Legislature may approve. A March Wisconsin Department of Justice advisory on holding open meetings during the pandemic addresses the need to accommodate citizens for whom virtual meetings are less accessible, such as those without internet access or who are deaf.
But it does not address how to make in-person meetings open to those unable to attend in person. Wendy Helgeson, president of the Wisconsin Municipal Clerks Association, which represents the officials who administer caucuses, believes the events ought to function like a standard public meeting.
“I think that however municipalities are choosing to hold those — board meetings and Sanitary District meetings or whatever else — I’m sure that they are going to hold this caucus in the same manner,” she said. And communities that have continued to hold in-person public meetings throughout the pandemic have offered other ways for the public to participate, such as calling in during the meeting or submitting a comment in advance, she said.
“I think that this year, with everything, most municipalities have had to come up with some sort of accommodation to allow for that transparency,” she said.
But Helgeson noted the unique nature of caucuses, saying she did not know if the mask mandate would be in effect, given that it is an “election matter.” Magney said the state election agency advises that caucuses “should follow public health guidelines to prevent the spread of the virus.”
The state’s open meetings law requires that “all meetings of all state and local governmental bodies shall be publicly held in places reasonably accessible to members of the public and shall be open to all citizens at all times unless otherwise expressly provided by law.”
But a caucus functions somewhere at the intersection of a public meeting and an electoral activity, Ruth said. “The caucus isn’t really a meeting of a body of the government. It’s really of the people itself, of the electors,” he said. “Now, with that said, it certainly still must be open to the public and all of those (open meeting) requirements.”
According to Bill Lueders, president of the Wisconsin Freedom of Information Council, failing to provide accommodations violates the state’s open meetings law. But, he said, when it comes to caucuses, the question is not as clear as no case about this issue has yet been taken up by courts.
“Honestly, I think you can pretty much follow common sense on this one, that ‘reasonable accommodation’ should mean that you don’t have to attend in-person during a pandemic. And if they’re not providing that, they’re in violation of the law,” he said.
During Monday’s court hearing, Mahler argued the town had made accommodations by moving the caucus to a larger space, establishing social distancing among tables, placing plexiglass protectors around them, requiring masks and distributing other personal protection equipment. Those accommodations, he argued, made the event more accessible to people with disabilities and those with COVID-19 safety concerns.
Ruth said other towns have moved their caucuses into the town shop, where road equipment is stored, or to the fire station, to provide additional space and ventilation. That’s the case in the town of Clinton, a community a community of fewer than 2,000 people southeast of La Crosse, said Town Clerk Sandy Schweiger. That caucus has been relocated from the town hall and into the town shop to better space out chairs. Officials will request participants to wear masks, and they will make hand sanitizer available at the Jan. 16 caucus, she said.
Still, she wonders how many elderly residents may stay home because of the pandemic. In Spring Green, a town of fewer than 2,000 people in Sauk County, Clerk Vicki Terpstra said she could not find definitive legal guidance on whether a caucus could be held virtually. So the event will be on Jan. 16 in the town hall garage, which is large, allowing for distancing and better airflow.
“Many people have voiced concerns about participating in in-person events due to the surge in COVID infections,” she wrote in an email. “However, others have voiced a desire to hold town electors meetings in-person.” Terpstra said officials at the event will “strongly suggest” participants wear a mask and provide a mask for those who arrive without one.
Unique rules, little guidance
Certain transparency requirements of public meetings also apply to caucuses, but other issues are left to the discretion of municipal officials. For example, the caucuses must be announced five or more days in advance, and publicized in the same way as any other public meeting. Like an election, only qualified voters — U.S. citizens over the age of 18 who have lived in the municipality for more than 28 days — may participate.
And participants are not subject to Wisconsin’s voter ID law, but they may be required to present identification if asked, according to Elections Commission guidance. They also need not be registered to vote — another quirk in the caucus system.
Those requirements would make it difficult to hold a caucus virtually, Ruth said. “How would you ensure that, whoever is speaking … that they are a qualified elector of the town?” he said. “There’s this difficulty in the integrity of who’s voting” — with the exception of towns where “everybody knows each other.”
Monday’s caucus in Hudson was ultimately a quick, straightforward affair. But, like so many issues that arose in this election cycle, Wisconsin law has been tested by once-in-a-lifetime public health emergency. Koeberl and Gostovich’s complaint and court challenge could spark an effort to clarify the law around this important right.
“The primary issue here that it’s easy to lose sight of is a really important fundamental right: the right to vote; the right to participate and choose who’s going to represent us in our government,” Koeberl said. “We need to preserve that even if people choose not to exercise it. That is something that we cannot just give up.”
The nonprofit Wisconsin Watch (wisconsinwatch.org) collaborates with Wisconsin Public Radio, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.