Wisconsin Appeals Court Blocks Voter Purge, for Now

MADISON, Wis. (CN) – Delivering a victory for Wisconsin liberals and voting rights advocates, the state appeals court on Tuesday stayed two rulings ordering elections officials to immediately purge over 200,000 people from the voter rolls.

People vote in Kieler, Wis., on Nov. 6, 2018. (Nicki Kohl/Telegraph Herald via AP, File)

Tuesday’s orders block a writ of mandamus handed down by Ozaukee County Circuit Court Judge Paul Malloy last month ordering the purge of voters who had potentially moved, as well as a contempt order handed down by Malloy on Monday after the Wisconsin Elections Commission refused to promptly purge those voters.

The stay blocking Malloy’s mandamus order was entered by a three-judge panel consisting of Judges Michael Fitzpatrick, JoAnne Kloppenburg and Jennifer Nashold, while the order blocking Malloy’s contempt finding was signed by Fitzpatrick alone. The rulings are not final but do have the effect of temporarily keeping tens of thousands of Wisconsinites on the voter rolls.

Tuesday’s rulings are the latest twist in a high stakes fight over the Badger State’s voter rolls that began when conservative advocacy group Wisconsin Institute for Law & Liberty, or WILL, sued the bipartisan elections commission last November, claiming it violated state law by refusing to deactivate registrations of voters who did not respond within 30 days to formal notices asking about possible address changes.

The elections commission mailed those notices to more than 230,000 voters in mid-October but had decided to wait until 2021 to update any flagged inconsistencies in the voter lists, a precaution stemming partly from a 2017 glitch that triggered the removal of tens of thousands of voters. Of those 230,000, roughly 209,000 have not requested continuation at their current address or registered at another one.

Malloy agreed on Dec. 13 with WILL’s contention that the board must adhere to the 30-day limit, issuing a writ of mandamus forcing the commission to change the registration status of every voter who did not respond to its October letters within the 30-day timeframe.

The commission, which is made up of three Democrats and three Republicans, did not carry out the purge. The three Democrats resisting the purge maintained the commission’s inaction is in line with state law governing voter lists.

After a 30-minute hearing in a Port Washington courtroom attended by dozens of protesters Monday morning, Malloy found the three Democratic commissioners and the commission itself in contempt for refusing to carry out the purge, hitting them with $250 per day and $50 per day fines respectively for each day the rolls are not purged.

The appeals court had stated as recently as last Wednesday that it would not weigh in until the state supreme court ruled on a petition from WILL asking the justices to settle the case.

The high court finally answered Monday evening, declining to take up the case in a sharply divided ruling and sending it back to the Madison-based District IV Court of Appeals.

The appellate court’s orders came out as the elections commission was simultaneously holding a closed meeting, during which it was expected to make a move on Malloy’s rulings demanding the purge.

WILL’s founder and president Rick Esenberg could not be reached for comment midday Tuesday.

Wisconsin has been thrust even further into the political spotlight due to the battle over the voter rolls. It now appears that the legal fight over the rolls will not play out before multiple crucial elections on the local, state and national levels in 2020, leaving all 209,000 of the challenged registrations in place for now.

Among the closely watched elections coming in the state are local primaries on Feb. 18, during which a special election to fill the 7th District Congressional seat vacated by conservative Rep. Sean Duffy will occur, and a potentially pivotal contest in April for a seat on the Wisconsin Supreme Court, in which conservative Justice Daniel Kelly is up for reelection.

In addition to statewide elections this year, Wisconsin is seen as a marquee battleground in November’s presidential election. President Donald Trump won the state by less than 25,000 votes in 2016, which was seen as critical to his upset victory over Democrat Hillary Clinton. Trump happens to be in Milwaukee for a campaign rally Tuesday night.

The League of Women Voters of Wisconsin filed a separate federal suit in December seeking to block the purge, arguing deactivation of the registrations would be a violation of constitutional due process protections. The Legislature has moved to intervene in that suit but has not been cleared to do so.

The dispute over the state’s voter rolls is bitterly partisan. Democrats argue that since voters who moved were concentrated in more liberal parts of the state, WILL’s lawsuit is intended to suppress voter turnout on their side. Republicans counter that the suit is about safeguarding against voter fraud and making sure people who have moved are not able to vote from their previous addresses.

The court of appeals did not outline its rationale for blocking the mandamus and contempt orders in Tuesday’s decisions, but its decisions did say “our reasoning will be set forth in greater detail in a separate order” after the day’s events, including the commission’s meeting, play out.

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