Wisconsin Appeals Court Won’t Take Up Voter Purge Case

MADISON, Wis. (CN) – A Wisconsin appeals court decided late Tuesday that it will not weigh in on a closely watched legal battle over the state’s voter rolls, which has drawn widespread attention due to its implications for 2020 elections in the key battleground state.

The fight over the Badger State’s voter rolls began when the conservative Wisconsin Institute for Law & Liberty, or WILL, sued the bipartisan Wisconsin 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.

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

Ozaukee County Circuit Court Judge Paul Malloy agreed last month with WILL’s contention that the board must adhere to the 30-day limit, issuing a writ of mandamus forcing the elections board to change the registration status of every voter who did not respond to its October letters within the 30-day timeframe.

The commission, however, still has not carried out the purge but maintains that its actions are in line with state law regarding updates to the voter rolls. It further argued the statutory 30-day limit WILL wants enforced does not apply to it.

The commission appealed Malloy’s order to the state appellate court branch in Madison on Dec. 17, but the court said late Tuesday in a brief order that it does “not anticipate ruling on the motion to stay” or otherwise taking on the suit for now.

This is due in part to the fact that WILL has petitioned the Wisconsin Supreme Court to take up the case, and that bypass petition is still pending. There was no indication of the high court’s intention on whether to weigh in as of Wednesday afternoon.

In reaction to the appellate court’s punt, WILL Founder and President Rick Esenberg said “we look forward to the supreme court’s decision on the bypass petition.”

“In the meantime,” Esenberg noted, “there is an existing court order that WEC has to comply with and we expect it to do so.”

The elections commission, which is made up of three Republicans and three Democrats, has deadlocked twice on whether to purge the voters from the state’s rolls since Malloy’s December order.

WILL countered by filing a motion for contempt in Ozaukee County Circuit Court last Thursday, which seeks the imposition of daily $2,000 fines on the commission and five of its members until they prove they are in compliance with Malloy’s order or until another order is handed down.

A hearing on WILL’s motion for contempt is scheduled for Jan. 13 in Port Washington, the seat of Ozaukee County.

The office of Wisconsin Attorney General Josh Kaul, a Democrat who is representing the elections commission in the suit, could not be reached for comment Wednesday.

The League of Women Voters of Wisconsin filed a separate federal suit over the voter rolls in December, asking a federal judge to stop the purge after Malloy previously blocked the League from intervening in WILL’s state action. The League’s federal suit argues deactivating the registrations from the voter rolls would be a violation of constitutional due process protections.

Further complicating matters, the Legislature has motioned to intervene in the League’s federal suit, although it has not yet been cleared to do so. A local branch of the Service Employees International Union has also attempted to intervene in WILL’s state suit.

The fracas over Wisconsin’s voter rolls is intensified by several critical elections in 2020, including local primaries on Feb. 18 and a crucial contest in April for a seat on the Wisconsin Supreme Court, in which conservative Justice Daniel Kelly is up for reelection. Kelly has stated he will sit out any proceedings in the suit should the high court decide to take it on.

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 pivotal to his upset victory over Democrat Hillary Clinton.

Tuesday’s decision from the state court of appeals was issued by a three-member panel consisting of Judges Michael Fitzpatrick, JoAnne Kloppenburg and Jennifer Nashold.

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