Fight Over Voter Rolls Reignites in Wisconsin High Court

Voters wait in line to cast ballots at Riverside University High School in Milwaukee, Wis., on April 7, 2020. (Courthouse News photo/Joe Kelly)

MADISON, Wis. (CN) — The Wisconsin Supreme Court on Tuesday explored the state elections commission’s powers and duties with regard to maintaining voter rolls in a continuation of a lengthy fight over tens of thousands of disputed voter registrations that conservatives believe should be deactivated.

Wisconsin’s latest voter rolls drama began last November when three suburban Milwaukee taxpayers sued the bipartisan Wisconsin Elections Commission, claiming the WEC violated state law by refusing to deactivate registrations of voters who did not give timely responses to formal notices asking about address changes.

The commission mailed those notices to more than 230,000 voters last October but decided to wait until 2021 to update any flagged inconsistencies on the voter lists, at least partially because a 2017 glitch triggered the removal of tens of thousands of properly registered voters.

The Wisconsin Institute for Law & Liberty, or WILL, a conservative advocacy group, represented the taxpayer plaintiffs in that suit and has led the charge to purge the state’s voter rolls over the last year.

Ozaukee County Circuit Court Judge Paul Malloy agreed with WILL and ordered the WEC to immediately purge any flagged voters last December, then found the commission in contempt when its members refused to carry out the purge on the basis that it did not have to under state law.

After WILL initially failed to fast-track the matter to the Wisconsin’s highest court, a three-judge panel of the state appeals court stayed both of Malloy’s orders in January before blocking them a month later in keeping with the WEC’s understanding of its responsibilities to maintain the voter rolls.

A different looking Wisconsin Supreme Court presided over the voter rolls arguments on Tuesday, as liberal-leaning Justice Jill Karofsky has replaced former conservative-leaning Justice Daniel Kelly on the high court since the ball was last in its hands.

Rick Esenberg, founder of the conversative Wisconsin Institute for Law & Liberty, argues before the Wisconsin Supreme Court on Tuesday in a dispute over voter registrations.

Arguments on Tuesday largely revolved around the interpretation of a few key words—namely, whether the WEC is a “board of election commissioners” charged with maintaining voter rolls or something separate under Wisconsin statutes—and the different inferences that can be drawn from a given interpretation.

WILL’s founder and chief counsel Rick Esenberg argued Tuesday that “the WEC is clearly the entity charged with maintaining these lists,” since it is encompassed by the relevant statutes’ broad “board of election commissioners” designation and the plain statutory language outlining voter roll responsibilities.

Karofsky resisted that interpretation and accused Esenberg of interpreting statutory language as specific or vague based on how it suits his argument in an attempt to have it both ways.

The freshman justice pointed out that the statute clearly gives a board of election commissioners comprising, say, local municipal clerks responsibilities different from the state elections commission in Madison and asked Esenberg if he wanted the court to “do a search-and-delete, or a search-and-edit” to replace every instance of “board of election commissioners” with “Wisconsin Elections Commission.”

Esenberg responded that the WEC’s reading of the statute infers a technical definition of “board of election commissioners” that is not there and “that inference leads us to a dead end” in terms of which entity it falls upon to clean up the voter rolls.

Karofsky also brought up the issue of the reliability of the list of flagged registrations, which is provided by the Electronic Registration Information Center, or ERIC, a nationwide database that helps enrolled states keep their voter roll information accurate, including by flagging people who may have moved. The WEC is then charged with reviewing ERIC’s list internally and acting accordingly.

“How do we know this list is reliable?” Karofsky asked, calling to mind the inaccuracies and glitching that led to wrongful deactivations in 2017 and the fact that the WEC chose last year not to take voters off the rolls because they were concerned about the list’s accuracy.

Esenberg countered that the list is statistically accurate enough to be acted upon and that “the WEC’s problem is that the list isn’t perfect and they don’t want to deal with that.”

The number of contested registrations has shrunk significantly since last year, going from around 230,000 to the roughly 130,000 at hand on Tuesday as voters have updated their registrations or confirmed that they never moved.

Wisconsin Attorney General Josh Kaul, a Democrat, argues before the Wisconsin Supreme Court on Tuesday in a dispute over voter registrations.

Wisconsin Attorney General Josh Kaul, a Democrat, appeared on behalf of the WEC, arguing that the statutes in question do not apply to the WEC and that the commission has no duty to treat the ERIC list as reliable and immediately “use it for mass deactivation.”

Justice Rebecca Grassl Bradley asked Kaul why the commission was sending out notices based on the ERIC movers list if it was inaccurate and it is actually up to local municipalities to notify voters of changes in their registration status. Kaul answered that the WEC has to send those notices as part of its agreement with ERIC, but that it has no statutory responsibility to purge registrations based on ERIC’s list.

Attempting to determine the edges of the WEC’s authority, Justice Brian Hagedorn wondered what the commission itself believes its powers really are and put it to Kaul to define those limits.

“Even if your position is correct,” that the commission does not have to purge the rolls, “could they? And if so, what would be their authority to do it?” Hagedorn asked.

While stating that Wisconsin is well known for having “the most decentralized” elections system in the country, Kaul said that voter list maintenance is often done at the most local levels and that the statutory requirement to undertake the kind of maintenance WILL is demanding simply does not apply to the WEC, which has no duty to purge the rolls even if it were the case that it technically could.

Given that there is only five weeks left before the Nov. 3 general election, it is unlikely the Wisconsin Supreme Court will issue a decision on the voter rolls before that time, leaving more than 100,000 registrations safely on the lists for the year’s biggest election.

Wisconsin’s highest court also heard arguments Tuesday in a dispute between state conservatives and a Madison clerk over the clerk’s decision to allow voters to get absentee ballots before the state’s chaotic April primary without providing any ID by saying they were indefinitely confined due to the Covid-19 pandemic.

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