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The union representing Madison teachers has sued the state over access to voter information in the annual elections that certify labor organizations.

Madison Teachers Inc. (MTI) says it has the right, under the state’s public records law, to know which Madison School District employees have cast a ballot and which ones haven’t while the 20-day voting period is taking place.

In the past, the Wisconsin Employment Relations Commission (WERC), the state agency that oversees union recertification elections, released that information only after the voting period ended. The commission told MTI it doesn’t get a list of who voted until after the election, and the law requires a secret ballot while it is underway.

MTI sued the commission and its chairman, James Scott, in Dane County Circuit Court on Monday, saying the information is critical to the union’s get-out-the-vote efforts and does little good after the fact.

“We can be much more effective and contact a lot more people if we’re not also calling people who already have voted,” John Matthews, MTI executive director, said in an interview.

To remain certified, a union must annually get the support of 51 percent of all eligible voters in its bargaining unit — a requirement set forth in Gov. Scott Walker’s signature 2011 legislation known as Act 10. The law significantly reduced collective bargaining rights for most public employees in Wisconsin.

Under the law, eligible union voters who do not vote are counted the same as those who vote no, an approach unions consider unfair.

Despite this rule, MTI just completed a successful election on Nov. 24. Eighty-six percent of eligible teachers voted to recertify the union. Of those who made the effort to cast a ballot, the support was almost unanimous, at 99 percent.

MTI also represents school district employees in four other bargaining units — educational assistants, substitute teachers, support staff and security assistants. Members of all four of those bargaining units also voted in strong numbers to recertify.

Matthews said MTI wants to do even better at getting eligible voters to cast ballots.

“The number of people who vote tells the school district and the School Board how important MTI is to them,” he said. “It shows that they really want the union to speak for them. And that’s especially important in these days when the supporters of Act 10 are really trying to make things impossible for us.”

During the 20-day voting period, MTI twice made open records requests for the names of employees who had voted. It did not seek to know how the employees had voted, only who had cast a ballot, Matthews said.

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In responding by letter on Nov. 16 to the first request, Scott said a third-party vendor conducts the voting process, so the commission does not know who has voted while the balloting is taking place.

Furthermore, because a non-vote is a no vote, revealing who has not voted could peg those people as not supporting the union, Scott said. This would undermine the concept of a secret ballot, which the law requires, he said.

“I would conclude that the interests of maintaining the secrecy of the ballot and of avoiding the potential for voter coercion while balloting is ongoing outweigh the interests favoring disclosure,” he wrote.

Peter Davis, WERC spokesman, said Tuesday that the commission releases the names after the election because the coercion potential is gone and “there is an overriding need to allow the parties to verify the election results.”

Matthews said a government entity cannot evade its public records responsibilities by shifting the custody of the records to a third party. The union also rejects the idea that disclosing who has voted undermines ballot secrecy.

On the coercion issue, the union’s lawsuit says “Scott’s concern that MTI might use the records to engage in unlawful voter coercion” is based on “an unreasonable and unwarranted suspicion” of MTI’s motivations.

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