The column below reflects the views of the author, and these opinions are neither endorsed nor supported by WisOpinion.com.

Wisconsinites went to the polls this week under a warning from the state’s Elections Commission: place a trade on an election through a prediction market like Kalshi, then vote in that same race, and you could forfeit your ballot and commit a felony.

The law behind that warning was written in 1849. It predates the Civil War. When it was drafted, an “election bet” meant two men putting money on a race at the tavern. Ann Jacobs, the Democratic commissioner who raised the law publicly, says she can’t recall a single instance of a voter’s ballot being challenged under it. An extensive search turned up no other instance of the Commission issuing a warning like this, let alone enforcing the law. It’s been 175 years since this law was written, and now it’s being weaponized against an industry that didn’t even exist a decade ago. 

By its own admission, the Commission can’t actually police who is trading. It has always been my philosophy that a law is only as good as it can be enforced. Enforcement would depend on a voter more or less turning themselves in, then being challenged at the polls and asked under oath whether they had placed a trade. Election officials have many duties and responsibilities to carry out safe and accurate elections, this should not be one of them. 

The warning didn’t arrive out of nowhere. Wisconsin has money in this. The state legalized online sports betting in April and takes a share of gaming revenue under its compacts, more than $66 million in 2024, and prediction markets were named during that debate as where some of the action was already going. As a former legislator, I doubt I would have voted for that bill, but it passed. A long-standing partnership with one industry isn’t a reason to warn voters away from a competing one.

Wisconsin’s attorney general has been fighting to drive these markets out of the state, and the Commodity Futures Trading Commission (CFTC), the federal agency that regulates them, is suing the state to stop it. The national gaming lobby has since asked to join that federal case, telling the court in writing that prediction markets threaten its members’ “core economic interests.” The organized push against these markets is coming from an industry that has told a federal judge that they are protecting their bottom line. Prediction markets should be scrutinized. They already are. The CFTC oversees them under rules Congress wrote for derivatives markets, and where there are disputes, they’re being litigated in federal court.

Consider what the Commission is steering people away from. Marquette’s July poll of the governor’s race didn’t include David Crowley. He was out when they started calling and back in, with Evers’ endorsement, before they finished. That’s how polling works. The prediction market repriced him within hours. A live read on a race used to belong to campaigns and their pollsters. It’s public now, and it’s public because people trade. The Commission is telling Wisconsinites they can trade on the governor’s race or vote in it, not both.

The legislature legalized a competing product the state takes a cut of. The attorney general sued the platforms. And in July, the Elections Commission warned voters off them in a press release, on a reading of a law that has sat unused since 1849. Whatever the state’s interest in this fight, it shouldn’t be creating felons out of our voters. The Commission should withdraw the warning.

Kathy Bernier served as Chippewa County Clerk for more than a decade and chaired the elections committee in the Wisconsin State Senate.