Race, religion and taxes are all on the Nov. 3 ballot, in what might be the end of the end-around trend.
Voters will decide on three proposed Wisconsin constitutional amendments, the latest of a dozen such measures on which Republican lawmakers have called referendums since Democratic Gov. Tony Evers took office in 2019.
One amendment would ban affirmative action by state and local governments, a move that the measure’s supporters frame as restricting diversity, inclusion and equity (DEI) programs. Another would outlaw closing places of worship in an emergency, such as the COVID-19 pandemic. Yet another would prohibit future governors from using their partial veto powers to increase or authorize increases in taxes or fees, in response to Evers’ “400-year veto” on school funding.
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Four of the last 12 proposed amendments, including those on church closures and veto powers, stemmed directly from conflicts between Evers and the GOP-majority Legislature. The other eight, including the diversity amendment, reflect broader Republican priorities, such as taking a tough-on-crime stance or playing into baseless vote-fraud claims. What all of them have in common is that GOP legislators could bypass Evers and send them straight to voters, instead of approving laws that he would have been able to veto.
However, that dynamic could change if Democrats hold the governorship and flip at least one house of the Legislature this fall, or if Republicans win the top job and keep at least one chamber. And even if the status quo continues — in a scenario where Milwaukee County Executive David Crowley defeats U.S. Rep. Tom Tiffany to succeed Evers, but Republicans hang on to both of their legislative majorities — the GOP would have new leaders who might adopt different tactics than outgoing Assembly Speaker Robin Vos and Senate Majority Leader Devin LeMahieu.
Debra Cronmiller, executive director of the League of Women Voters of Wisconsin, sees the proposed amendments as an outgrowth of “one of the most extreme gerrymanders in the nation,” the partisan redistricting that let Republicans keep comfortable majorities in both houses even after Democrats won all statewide elections in 2018.
“Legislators can put these questions on the ballot to confuse and mislead voters to entrench their own power,” says Cronmiller, whose organization opposes all three amendments.
By contrast, Sen. Chris Kapenga (R-Delafield) argues that it’s appropriate for the Legislature to ask voters to decide questions on which it doesn’t agree with the governor. That process still gives voters the final say, notes Kapenga, who was the Senate sponsor of the veto powers amendment and a cosponsor of the other two amendments.
Voters sided with GOP lawmakers in approving seven of the last nine proposed amendments, adding provisions to expand crime victim rights, limit cash bail, prohibit election officials from accepting outside funding and staff help, tweak the wording of citizenship voting requirements and enshrine voter photo ID in the constitution. Evers and his fellow Democrats prevailed in defeating two August 2024 measures that would have restricted his power over federal funds awarded to the state.
Cronmiller says “amending the constitution is a big deal” — requiring passage in two consecutive legislative sessions and approval by voters — and notes the latest amendments will be difficult to undo if they have unforeseen consequences.
Kapenga says he sees all three amendments as fundamental issues of restricting government power and guaranteeing individual rights that belong in the constitution, as opposed to more transitory policies that should be enacted through legislation.
Here’s a closer look at each amendment:
GOP vs. DEI
Perhaps the most contentious of the three ballot measures, the diversity amendment is rooted in the view that anti-racist programs are themselves racist.
This question asks voters to “prohibit governmental entities in the state from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in public employment, public education, public contracting or public administration.”
That reflects a long-standing conservative argument that programs meant to help groups historically disadvantaged by racism and misogyny are discriminating against white males. This nationwide movement has broadened from challenging traditional affirmative action in hiring, contracting and college enrollment to an assault on all forms of DEI programs.
Five other states — Michigan, Nebraska, California, Arizona and Oklahoma — have adopted similar constitutional amendments, and Michigan and California voters will consider expanding them this November. The movement gained steam with a 2023 U.S. Supreme Court decision prohibiting any consideration of race in college admissions, followed by the Wisconsin Supreme Court’s June ruling to strike down the state’s Minority Undergraduate Retention Grant Program.
“Past discrimination, however wrong, cannot be corrected with more discrimination,” the amendment’s Senate sponsor, Sen. Steve Nass (R-Whitewater), told colleagues at a January hearing. “Old wounds cannot be healed by inflicting new ones.”
Cronmiller calls the amendment’s reference to outlawing discrimination “misleading,” because the state and federal constitutions already outlaw discrimination. Nonetheless, she says, people of color and women still are treated unequally and still need help to remedy those inequities.
“It is not people crying out to say, ‘Stop discrimination against white people,’” remarked Cronmiller. “It is quite the opposite.”
However, Dan Lennington, managing vice president of the Wisconsin Institute for Law and Liberty, argues the amendment’s prohibition on discrimination would be “more explicit” than current law and constitutional provisions, and for women, would be as strong as the failed Equal Rights Amendment to the U.S. Constitution.
Sterling Knoche, staff attorney at the University of Wisconsin Law School’s State Democracy Research Initiative, says it’s not clear whether the amendment would provide greater protection against gender or racial discrimination. And he says that’s just part of a long list of things that aren’t clear about the amendment, including its specific effect on a wide variety of programs that may offer different treatment for different groups without an explicit racial or gender preference, such as disadvantaged businesses.
Lennington says the amendment would allow different treatment “with a reasonable basis,” such as requiring female guards in women’s prisons or offering benefits to veterans. It also includes an exemption for diversity measures required to avoid losing federal funding.
Prayers and Plagues
More than six years after the COVID pandemic struck the nation, it’s still infecting public policy debates, including the church closure amendment.
This question asks voters to decide that neither the state nor local governments could “order the closure of or forbid gatherings in places of worship in response to a state of emergency at the national, state or local level, including an emergency related to public health.”
The U.S. Supreme Court ruled in a California case that states couldn’t fully close places of worship during COVID. In Wisconsin, state and local officials didn’t order churches, synagogues and mosques to close completely during the pandemic, but they imposed strict capacity limits, some of which were either overturned by the state Supreme Court or eased in response to complaints. By contrast, bars and liquor stores were grouped with restaurants and supermarkets as essential food and beverage businesses, although they also had capacity limits.
In 2021, the GOP-led Assembly added bans on church closures and vaccine mandates to pandemic-related legislation negotiated by Evers and Senate Republicans. That blew up the compromise deal, leading Evers to veto the final bill.
Kapenga says congregations should be able to decide whether to stay open, and congregants should be able to decide whether to risk their health by attending services.
Cronmiller says protecting citizens from disease and death isn’t government overreach that infringes on freedom of religion, which is already protected. Wisconsin’s Supreme Court has found that the state constitution’s guarantee of freedom of religion is even stronger than the equivalent clause of the U.S. Constitution’s First Amendment.
“The motivation isn’t to prevent worshipping,” Cronmiller says of emergency limits on churches. “The motivation is to provide safety for all worshippers.”
Kapenga says the amendment’s intent is to prohibit any restrictions on religious gatherings, although it wouldn’t block mask mandates. However, Knoche says it’s not clear whether the language would prevent capacity limits.
In 17 other states, pandemic-related laws require places of worship to be treated the same as other businesses and institutions in emergencies, the State Democracy Research Initiative found. Knoche says Wisconsin would be one of only four states — with Iowa, Tennessee and Texas — where churches have greater protection, allowing them to remain open even if a major disaster closes everything else.
Wisconsin would be the only state with any form of this language in its constitution, instead of a law, Knoche notes. A state law could be changed in days if it proves unworkable in an emergency, but changing the constitution would take two years, he adds.
Capping a Mighty Pen
In his clashes with legislative Republicans, Evers has wielded a weapon that no other U.S. governor holds — a super-powered veto pen that allows him to not just reject an entire piece of legislation but also to reshape appropriations bills by crossing out paragraphs, sentences, words, numbers and punctuation marks to create new language.
It’s a power that governors of both parties have used and that lawmakers of both parties have bristled at, even after voters approved two previous amendments to scale it back. But this debate has become more partisan.
The latest veto power question asks voters “to prohibit the governor, in exercising his or her partial veto authority, from creating or increasing or authorizing the creation or increase of any tax or fee.”
That comes in response to Evers’ surgical deletion of digits and punctuation in the 2023-’25 state budget to increase school district revenue limits through the 2425 school year, instead of 2025 as the Legislature intended. Although Republicans claim that would increase all school property taxes for 400 years, it only raises the cap for school district levies and state school aid combined, meaning school boards might not raise taxes if their state aid rose or their expenses dropped.
The amendment would not prohibit similarly creative moves to limit taxes, such as former GOP Gov. Scott Walker’s “1,000-year veto,” which paused some school tax referendums until 3018 instead of 2018.
Bipartisan coalitions formed in 1990 to outlaw the “Vanna White veto,” after Republican Gov. Tommy Thompson crossed out letters to form new words, and again in 2008 to ban the “Frankenstein veto,” after Democratic Gov. Jim Doyle deleted parts of different sentences to stitch together new sentences. However, only Republican legislators voted to advance the current proposal.
Cronmiller says that reflects the scarcity of bipartisan compromises throughout the last eight years, as GOP lawmakers routinely blocked most of Evers’ policy proposals and interminably delayed confirming many of his nominees. In that environment, and with widespread frustration over school funding, she argues that the governor needs a broad partial veto as a check on legislative power.
Kapenga disagrees, saying, “Our governor has more authority than any other governor in the United States to change legislative intent with their veto. The governor should never have this much power,” regardless of which party holds the office.
Voters approved the partial veto in 1930 to counteract legislative “log-rolling” deals in which lawmakers packaged each other’s pet projects together in a single appropriations bill. The State Democracy Research Initiative cited that history in a friend-of-the-court brief arguing that Evers’ 400-year veto exceeded his authority and the constitution’s intent, Knoche noted.
In 43 other states, governors have line-item veto powers that allow them to delete specific spending items from appropriations bills. Illinois governors also have an amendatory veto that allows them to propose broader changes, but unlike Wisconsin’s partial veto, the Illinois governor’s changes only become law if approved by a simple majority of both legislative houses.
Kapenga says he doesn’t even support line-item vetoes. He hopes Wisconsin will one day join Indiana and the five other states where governors can only sign or veto entire bills. That would still give the governor plenty of negotiating power in working out deals with legislators, Kapenga says.
But as Cronmiller says, “The Legislature wasn’t negotiating.” And that’s what led to all three of these amendments and the many conflicts that preceded them.
