Amendments to the Wisconsin Constitution

In 1848, voters in the Wisconsin Territory ratified the Wisconsin Constitution. The original copy of the Constitution, a handwritten document drafted by the delegates at the 1847 constitutional convention, is missing.

The Constitution ratified in 1848 is still in use today. However, it has also been amended nearly 150 times.

To amend the Constitution, legislators in two successive legislative sessions must vote, by a majority in both houses, to pass the amendment and present the amendment to voters. Wisconsin voters then have the opportunity to ratify or reject the proposed amendment.
 

Under the original 1848 constitution, the legislature established by statute the process for selecting the chief justice of the Wisconsin Supreme Court. Under its system, judicial candidates specifically ran and were elected to the position of chief justice. In 1889, the constitution was amended to assign the position to the most senior justice. This system remained in place until 2015, when the people ratified an amendment requiring the chief justice “be elected for a term of 2 years by a majority of the justices then serving on the court.” Proponents argued that this amendment would promote collegiality within the court, while opponents responded it would do just the opposite and merely aimed to remove Shirley Abrahamson from her position as chief justice. Shortly after the 2015 amendment was ratified, the court, dividing along ideological lines, elected Patience Roggensack as the new chief justice in place of Abrahamson.

In 2008, voters once again amended the governor’s partial veto power of appropriations bills prevent the governor from rejecting parts of two or more sentences to create a new sentence.

For more information, see 1930.

In 1990, voters amended the governor’s partial veto power of appropriations bills to prohibit the governor from forming new words by vetoing individual letters.

For more information, see 1930.

The right to vote under Article III of the Wisconsin Constitution has, for the most part, become more inclusive over time. The original 1848 constitution limited suffrage to specified “classes” of “male person[s],” who were at least 21 and had resided in the state for one year—namely (1) “White citizens of the United States”: (2) “White persons of foreign birth who shall have declared their intention to become citizens conformably to the laws of the United States on the subject of naturalization”; (3) “Persons of Indian blood, who have once been declared by law of Congress to be citizens of the United States”; and (4) “Civilized persons of Indian descent, not members of any tribe.”

The original constitution also authorized the legislature to “extend by law the right of suffrage to persons not herein enumerated” after first submitting the proposed extension “to a vote of the people at a general election” for approval “by a majority of all the votes cast at such election.” Pursuant to this mechanism, Wisconsin voters in 1849 approved a measure extending the franchise to Black men. The validity of this measure was not settled until the state supreme court’s 1865 decision in Gillispie v. Palmer, which ruled in favor of Ezekiel Gillespie after he was turned away from the polls and sued to vindicate his right to vote.

The state has enacted four amendments to the elections Article over the years. The first, in 1882, made only technical corrections. The second was more significant: Whereas the original constitution allowed noncitizens to vote if they declared an intent to become citizens, the 1908 amendment eliminated this option effective in 1912, excluding noncitizens from the franchise. The 1934 women’s suffrage amendment recognized the expansion of suffrage already accomplished through the 19^th Amendment to the U.S. Constitution.

Finally, the 1986 amendment repealed Article III entirely and replaced it with a new version. The new text no longer enumerates limited “classes” eligible to vote. Instead, it states that every resident of a state election district over the age of 18 is a qualified elector for state constitutional purposes. In addition, after this amendment, Article III, Section 2 no longer categorically prohibited individuals “under guardianship” or “convicted of treason or felony” “unless restored to civil rights” from voting. Rather, the legislature has the power to exclude these individuals, but it need not do so. The amendment also continues to allow the legislature to expand voting rights subject to approval through a statewide referendum.

Wisconsin’s original constitution, like the Declaration of Independence, declared that “[a]ll men are born equally free and independent” and referred to governments being instituted “among men.” Wis. Const. art. I, § 1. In 1982, voters ratified an amendment that removed or replaced gendered words throughout the constitution and replaced other obsolete provisions. Article I, Section 1 now declares “[a]ll people are born equally free and independent” and omits the words “among men.” The 1982 amendment similarly struck masculine terms from the religious freedom protection in Article I, § 18; the reference to the state superintendent’s office as “his” office in Article X, Section 1; and the use of “her” when referring to the state’s public lands in Article X, Section 2.

Shortly after the Wisconsin Constitution’s 100-year anniversary then-Attorney General Thomas E. Fairchild, who would go on to become a justice on the Wisconsin Supreme Court and judge on the U.S. Court of Appeals for the Seventh Circuit, authored an article proposing several amendments to the constitution. Among other amendments, Judge Fairchild proposed replacing the ad hoc system of courts with varying jurisdiction with a unified judiciary having plenary jurisdiction. He believed this change to the state judiciary’s structure would promote more efficient and effective judicial administration.

Nearly 30 years later, some of Judge Fairchild’s suggested amendments were enacted as part of a general overhaul to Wisconsin’s judiciary. The court reorganization amendments rewrote most of Article VII, but changes were also made to parts of Articles I, IV, and XIV as they relate to the judiciary. Some of the notable changes include:

• Clarifying that the Wisconsin Supreme Court holds superintending and administrative authority over the entirety of the state’s judiciary.
• Creating a single court of appeals to serve as an intermediate court of appeal. This was part of a larger effort to unify the judicial system by eliminating a network of courts with different limited jurisdictions and replacing them with courts standardized jurisdictions. These changes were in line with a general trend to streamline and simplify the judicial system that began in 1959 when the legislature adopted legislation abolishing most courts with special statutory jurisdictions.
• Permitting the legislature to establish a uniform retirement age, not less than 70, for judges and justice, and the ability of retired judges to serve on a temporary basis.

In proposing the judicial overhaul, the 1973 Citizens Study Committee on Judicial Organization reported, “It has often been suggested that no court system can work with bad judges, and that good judges can make any system work. Without challenging this piece of ‘conventional wisdom,’ it must also be added that a good court structure will maximize the quality and quantity of judicial output, minimize administrative complexities and costs, and promote confidence in the judicial system.”

Removal of Judges

The 1848 constitution permitted the legislature, by a two-thirds vote in each house, to remove by address “[a]ny judge of the supreme court or, circuit court.” But the constitution was silent as to county and municipal court judges. To remedy this omission, Article VII, Section 13 was amended in 1974 to apply same removal procedure to “[a]ny judge of the supreme or, circuit, county or municipal court.” This language was further simplified only three years later as a part of the 1977 judicial overhaul. That amendment applied the removal procedure to “[a]ny justice or judge” rather than listing types of courts.

Agricultural Land Exception to Uniform Taxation

Like nearly all state constitutions, Wisconsin’s constitution contains a provision requiring that “taxation shall be uniform.” This requirement was meant to promote fair taxation and prevent preferential treatment for influential property owners. However, over time, there have been many amendments carving out exceptions to the rule of uniformity. These include the 1908 amendment to Article VIII, Section 1 permitting a progressive and graduated income tax, the 1927 amendment permitting non-uniform taxation of forests and embedded minerals meant to aid Wisconsin’s logging industry, the 1941 amendment permitting municipalities to collect property tax payments in installments, and the 1961 amendment permitting non-uniform taxation of merchants’ products and materials to phase out personal property taxation.

The most recent of these amendments in 1974 permitted non-uniform taxation of agricultural and undeveloped land. This amendment permitted the legislature to establish the farmland preservation tax credit, which was aimed at disincentivizing farmland owners from selling their farmland to developers. It also effectively overruled the Wisconsin Supreme Court’s significant decision in Knowlton v. Board of Supervisors, 9 Wis. 410 (1859), which held Janesville’s cap on agricultural property taxes unconstitutional under the Uniformity Clause.

Like nearly all state constitutions, Wisconsin’s constitution contains a provision requiring that “taxation shall be uniform.” This requirement was meant to promote fair taxation and prevent preferential treatment for influential property owners. However, over time, there have been many amendments carving out exceptions to the rule of uniformity. These include the 1908 amendment to Article VIII, Section 1 permitting a progressive and graduated income tax, the 1927 amendment permitting non-uniform taxation of forests and embedded minerals meant to aid Wisconsin’s logging industry, the 1941 amendment permitting municipalities to collect property tax payments in installments, and the 1961 amendment permitting non-uniform taxation of merchants’ products and materials to phase out personal property taxation.

The most recent of these amendments in 1974 permitted non-uniform taxation of agricultural and undeveloped land. This amendment permitted the legislature to establish the farmland preservation tax credit, which was aimed at disincentivizing farmland owners from selling their farmland to developers. It also effectively overruled the Wisconsin Supreme Court’s significant decision in Knowlton v. Board of Supervisors, 9 Wis. 410 (1859), which held Janesville’s cap on agricultural property taxes unconstitutional under the Uniformity Clause.

The 1882 constitutional amendment that provided for biennial legislative elections also moved the legislature to a biennial session. Accordingly, post-1882 version of Article IV, Section 11 permitted the legislature to meet “once in two years, and no oftener.” The 1968 amendment removed this language, instead permitting the legislature to meet “at such time as shall be provided by law.” Proponents of the 1968 amendment argued hoped that it would permit the legislature to better structure its sessions to prevent backlog at the end of the single session, thus making the legislature more effective at enacting legislation and responsive to the electorate.

Wisconsin’s journey to women’s suffrage spanned decades. In 1912, Wisconsin voters rejected a hard-fought women’s suffrage amendment to the state constitution. Less than a decade later, however, Wisconsin was the first state to ratify the 19^th Amendment to the U.S. Constitution, which made women’s suffrage the law of the land. In 1934, Wisconsin formally eliminated the male-only voting restriction in its constitution as an “obsolete provision.”

In 1911, the Wisconsin legislature ended its practice of passing individual appropriation bills and began enacting omnibus spending bills. This put the governor in the position of either vetoing the spending bill in its entirety or signing it into law notwithstanding any objections. The legislature sought to alleviate this problem by amending Article V, Section 10 to grant the governor a partial veto power, which the people ratified in 1930. That amendment gave the governor the ability to veto appropriations bills “in part.” The partial veto was amended in 1990 to prevent the governor from forming new words in bills by vetoing individual letters (a practice sometimes called the “Vanna White veto” after the game show “Wheel of Fortune”). Article V, Section 10 was again amended in 2008 to prohibit the governor from forming new sentences by vetoing portions of two or more separate sentences (a practice sometimes called the “Frankenstein veto”). For more information, see the Legislative Reference Bureau’s report detailing the history of the governor’s partial veto power.

On the heels of Wisconsin’s progressive movement, led by governor and U.S. Senator Robert La Follette at the turn of the twentieth century, Wisconsin voters in 1925 adopted a recall provision in Article XIII, Section 12 of the state constitution.

At the time of Wisconsin’s amendment states and municipalities across the country were instituting voter-initiated recalls as a way of giving the voters a greater and more direct voice in government affairs. The amendment permitted voters to petition for the recall of any elected official of the state, county, congress, judiciary, or legislature after the official’s first year of service. As Senator La Follette wrote in a campaign essay entitled “Shall the People Rule?,” the recall was part of “a movement to make the people’s representatives more responsive to the people’s welfare,” for “[u]nder such a law, the public official will no longer betray his constituency.”

The voters ratified the amendment by fewer than 5,000 votes. The recall process was amended in 1981 to create a primary election and prevent candidates from winning office with a plurality rather than a majority of the votes. In 2012, Wisconsin became the third state to initiate a recall election against the governor, and the first to have a governor survive the recall.

Until the early twentieth century, Article IV, Section III of the Wisconsin Constitution required the state to conduct a statewide census every 10 years on the years ending in “5” to provide an interim population count midway between each federal census. It also required lawmakers to establish new state legislative districts during their first session following both the federal census and the census—that is, every five years. Wisconsinites amended the Constitution in 1910 to eliminate the mid-decade state census and to require apportionment only after completion of the federal census.

Under the original constitution of 1848, the legislature was elected on an annual basis, with members of the assembly elected once each year and senators elected every two years. A set of amendments adopted in 1882 shifted the legislature to biennial elections, such that elections would be held every two years and coincide with federal congressional elections, with assembly members now serving two-year terms and senators serving four-year terms. This shift was billed as a cost saving measure, as it eliminated the need to hold annual elections. Some also made a good governance argument for the shift, predicting that less frequent elections would discourage sudden and rapid changes in the laws. These amendments also replaced the per diem compensation scheme for legislators with an annual salary.

In 1848, Wisconsin voters ratified the state constitution.