Wisconsin Appeals Court Keeps Voters Facing Purge on Rolls

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

MADISON, Wis. (CN) – A Wisconsin appeals court on Friday blocked two rulings ordering elections officials to immediately purge over 200,000 people from the voter rolls because they might have moved, handing another victory to voting rights advocates.

Friday’s order from the District IV Court of Appeals in Madison is in concert with a stay entered by the same court in January of a writ of mandamus handed down by Ozaukee County Circuit Court Judge Paul Malloy in December, which ordered an immediate purge of flagged voters.

The order also reverses a contempt finding Malloy handed down in January after the state elections commission refused to promptly purge those voters.

The ruling is the latest development in an acrimonious 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 last 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.

Malloy agreed in December with WILL’s contention that the 30-day limit applies to the commission, ordering the purge of every voter who did not respond to its letters within the 30-day timeframe. The commission, made up of three Democrats and three Republicans, did not carry out the purge. The three Democrats resisting the purge maintained that the commission’s inaction is in line with state law governing voter lists.

Malloy then found the three Democratic commissioners and the commission itself in contempt for refusing to carry out the purge after a quick hearing in a Port Washington courtroom attended by dozens of protestors. Malloy hit the commissioners and commission with fines of $250 per day and $50 per day, respectively, for each day the rolls are not purged.

WILL asked the Wisconsin Supreme Court to settle the matter, but the high court declined the same day as Malloy’s contempt finding in an emphatically divided ruling, sending the dispute back to the appellate court.

Wisconsin voters got their answer from the appellate court Friday, with Judge Michael Fitzpatrick writing that “the plain language [of the relevant statute] neither refers to the commission nor places any duties on the commission.”

The judge wrote that the statute refers to a “board of election commissioners” which is a municipal governmental body the legislature established in Milwaukee, but that statute makes no reference the “commission,” or the state elections commission based in Madison.

Fitzpatrick pointed out that “the legislature refers to the Wisconsin Elections Commission more than one hundred times as the ‘commission’ in the election laws. The legislature separately refers to the board of election commissioners as only the ‘board of election commissioners’ more than one hundred times in the elections laws,” implying that the statute is clearly referring to different responsibilities for different entities.

“In interpreting the Wisconsin statutes,” he continued, “courts may not rewrite the plain language of the statutes the legislature has enacted. Acceptance of the arguments of plaintiffs would cause us to rewrite statutes enacted by the legislature, and that we cannot do.”

Fitzpatrick was joined on the three-member panel by Judges JoAnne Kloppenburg and Jennifer Nashold.

The elections commission and Wisconsin Attorney General Josh Kaul both applauded Friday’s ruling.

The commission’s administrator Meagan Wolfe said Friday that “we appreciate the court of appeals decision and will move forward with the process approved by the members of the Wisconsin Elections Commission in June 2019 for handling mailings sent to potential movers.”

Wolfe stressed that voters who did not respond to the commission’s October letter have not been deactivated, but also noted that voters who have moved must be registered at their current address before they can vote.

Kaul, a Democrat, called the appellate court’s decision “a win not only for the Wisconsinites who were nearly purged from the voter rolls, but also for our democracy.”

WILL indicated Friday it would not settle for the appellate court’s interpretation.

“Wisconsin deserves clean elections in 2020. It is our intent to seek review in the Wisconsin Supreme Court to ensure that the Wisconsin Elections Commission complies with the law,” said Rick Esenberg, WILL’s president and general counsel.

How the high court will rule on the matter should the justices choose to review it remains to be seen. Conservative Justice Brian Hagedorn sided with the court’s two liberal justices when the high court turned down the case in January, offering no rationale for his decision. Fellow conservative Justice Daniel Kelly sat out the ruling, as he is up for reelection against Dane County Circuit Court Judge Jill Karofsky on April 7.

That election is one reason the Badger State’s battle over its voter rolls has been thrust into the national spotlight, as it is the same day as Wisconsin’s presidential primary, when high Democratic turnout is anticipated.

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

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